PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


ANTOINETTE M. MARINO,                  
        Party in Interest-Appellant,
                 v.
PIONEER EDSEL SALES, INCORPORATED;                No. 02-2149
CLUTTER MOTOR SALES,
INCORPORATED; RICKY CLUTTER,
              Defendants-Appellees.
                                       
          Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                 J. Frederick Motz, District Judge.
        (CA-95-1069-MDL, CA-95-2716, CA-00-991-JFM)

                      Argued: September 23, 2003

                      Decided: November 17, 2003

        Before TRAXLER and KING, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Traxler and Judge King joined.


                             COUNSEL

ARGUED: Erwin Chemerinsky, UNIVERSITY OF SOUTHERN
CALIFORNIA LAW SCHOOL, Los Angeles, California, for Appel-
lant. James Patrick Ulwick, KRAMON & GRAHAM, P.A., Balti-
more, Maryland, for Appellees. ON BRIEF: Patricia A. Moore,
2                  MARINO v. PIONEER EDSEL SALES
LAW OFFICES OF PATRICIA A. MOORE, Torrance, California,
for Appellant. Robin G. Workman, QUALLS & WORKMAN, L.L.P.,
San Francisco, California, for Appellees.


                              OPINION

HAMILTON, Senior Circuit Judge:

   Plaintiff-Appellant, Antionette Marino (Marino), appeals from a
district court order holding that Marino was not entitled to any attor-
ney’s fees for work she allegedly performed for Defendants-
Appellees, Pioneer Edsel Sales, Inc., Clutter Motor Sales, Inc., and
Ricky Clutter (collectively referred to as Pioneer Honda), in a class
action lawsuit against American Honda Motor Company, Inc. (Ameri-
can Honda). We affirm.

                                   I

   In 1995, Honda dealers around the country began suing American
Honda in federal courts alleging violations of, inter alia, the Racke-
teer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§ 1961 et seq. One of these lawsuits was a class action. In the summer
of 1995, the Judicial Panel on Multi-District Litigation consolidated
those cases for pre-trial purposes and transferred them to the United
States District Court for the District of Maryland. Judge Motz was
assigned to the cases.

   In a January 1998 order, Judge Motz certified a limited liability
class for trial in the Honda class action (the Honda Class Action). Pio-
neer Honda was a class representative. The January 1998 order con-
templated a "Phase I," where all liability claims by the Honda dealers
would be tried against American Honda. The order required, however,
that each Honda dealership individually prove its damages. (J.A.
146). Thus, every plaintiff in the Honda Class Action, including rep-
resentative plaintiffs such as Pioneer Honda, expected to individually
try its damages case in a "Phase III" proceeding. (J.A. 146).

   Sometime shortly after Judge Motz’s certification decision, it came
to the attention of Elizabeth Graham, Esquire, of the law firm of
                   MARINO v. PIONEER EDSEL SALES                     3
Rapazzini & Graham, that American Honda was attempting to settle
the claims of Pioneer Honda by agreement with the dealership’s new
owner, Ricky Clutter (Clutter). Until that time, the former owners of
Pioneer Honda, Al Reilly (Reilly) and Mildred Radar (Radar), who
were represented by Rapazzini & Graham, had been actively prose-
cuting the claims pursuant to an alleged oral agreement with Clutter.

   On February 19, 1998, Graham contacted Marino, who was Clutter
and Pioneer Honda’s counsel at the time, and asked for an assignment
of rights from Clutter to Reilly and Radar ostensibly in exchange for
a referral fee. In a subsequent conversation, Graham told Marino that
she was representing other individual dealers in the Honda Class
Action and was interested in representing Clutter. Marino and Gra-
ham ultimately convinced Clutter to reject American Honda’s
$325,000 settlement offer (which at one time Clutter and Marino were
inclined to accept) and to prosecute Pioneer Honda’s claims through
Graham.

   To avoid a dispute between the current and former owners, Clutter
agreed to work with Reilly and Radar and share the proceeds of any
recovery from American Honda in the Honda Class Action. Thereaf-
ter, Rapazzini & Graham and Clutter entered into an "Attorney Repre-
sentation Agreement." (J.A. 987).

   Marino is not a party to the Attorney Representation Agreement,
but it reflects her status at that time as Clutter’s personal counsel.
Paragraph 5 of the Attorney Representation Agreement provides as
follows: "Attorneys shall act as co-counsel with my personal attorney,
Antoinette Marino, Esq. This shall not increase the Attorneys’ fees set
forth herein." (J.A. 988). Paragraph 4 of the Attorney Representation
Agreement provides for a graduated contingent fee to be paid to
Rapazzini & Graham based upon Rapazzini & Graham’s representa-
tion of Clutter "on an individual basis." (J.A. 987). The Attorney Rep-
resentation Agreement contemplated that Marino could be required to
perform work on Clutter’s behalf should the case be tried individually
and provided that Marino would receive "30% of the total attorneys’
fees provided for in paragraph 4 or some other fair percentage." (J.A.
988).

  In an April 6, 1998 letter that Marino sent to Clutter, Marino
explained the Attorney Representation Agreement to Clutter. Marino
4                  MARINO v. PIONEER EDSEL SALES
explained that she would receive thirty percent of the attorney’s fees
paid to Rapazzini & Graham. Marino also promised that "[t]he 30%
shall in no way increase the attorney’s fees for which the client, Pio-
neer Edsel Sales, agrees to pay Rapazzini & Graham (paragraph 4 of
the Attorney [Representation] Agreement)." (J.A. 1680). On April 15,
1998, Marino filed a notice of appearance in an action related to the
Honda Class Action that was pending in the District of Maryland.
This action, which was brought by Pioneer Honda against two fellow
California Honda dealerships and was transferred to the District of
Maryland as part of the America Honda multi-district litigation,
alleged, inter alia, that the dealerships along with American Honda
violated RICO.

   In June 1998, American Honda approached Rapazzini & Graham,
who by then had been appointed class counsel, about the possibility
of a global settlement. A class action settlement (the Borman Settle-
ment Agreement) was negotiated in July 1998 and all proceedings
were stayed pending a fairness hearing. An econometric model was
developed and a formula was devised to distribute any settlement pro-
ceeds to the entire settlement class of Honda dealers. Thus, the class-
wide damages settlement eliminated the need for any dealership,
including Pioneer Honda, to prove damages individually. Each class
member needed only to elect to remain in the class to receive a recov-
ery under the plan of distribution. According to Rapazzini & Graham,
this event rendered nugatory all individual contingent fee contracts
with Rapazzini & Graham, and Rapazzini & Graham notified each
class representative of that fact and the amount that they could expect
to receive from the global settlement.

   Of note, in so approving the Borman Settlement Agreement, Judge
Motz expressly found that the total amount of settlement to be paid
to the plaintiffs’ class under the Borman Settlement Agreement was
fair, reasonable, adequate, and in the best interests of the class as a
whole. Paragraph 19 of the Borman Settlement Agreement states that
Judge Motz "shall have exclusive and continuing jurisdiction" over all
disputes arising from or relating to the Borman Settlement Agree-
ment, including disputes concerning attorney’s fees. (J.A. 1261).
Moreover, the October 9, 1998 Order of Final Settlement Approval
states that the "Court shall have and retain exclusive jurisdiction with
                   MARINO v. PIONEER EDSEL SALES                      5
respect to . . . any applications or disputes concerning attorney’s fees
. . . which may arise." (J.A. 1275-76).

   As a result of the Borman Settlement Agreement and the October
9, 1998 Order of Final Settlement Approval, no contingent fee or
attorney’s fees were paid to Rapazzini & Graham under the Attorney
Representation Agreement. Moreover, no fees or costs were paid to
Rapazzini & Graham pursuant to any individual fee contract once
global negotiations began. Rapazzini & Graham were paid as class
counsel pursuant to their application to Judge Motz. The record
reflects that, as class counsel, Rapazzini & Graham were paid approx-
imately twenty million dollars pursuant to the Borman Settlement
Agreement and the October 9, 1998 Order of Final Settlement
Approval. Pioneer Honda’s recovery under the plan of distribution
was approximately two million dollars: Clutter received approxi-
mately two-thirds of that sum, with the balance being paid to the for-
mer owners of Pioneer Honda. According to Marino, she was not
paid, by Rapazzini & Graham or Pioneer Honda, for the approxi-
mately 400 hours of legal work she performed in connection with the
prosecution of Pioneer Honda’s claims against American Honda.

   In June 2000, Marino filed an action against Rapazzini & Graham
in California state court asserting numerous claims including fraud
and breach of contract. In essence, Marino sought to recover thirty
percent of the attorney’s fees Rapazzini & Graham received for the
representation of Pioneer Honda’s interests in the Honda Class
Action.

   Thereafter, Rapazzini & Graham filed a motion before Judge Motz
entitled "Motion for Adjudication of Fee Dispute Pursuant to the Bor-
man Settlement Agreement ¶ 19 and Request for Reasonable Attor-
neys’ fees Pursuant to ¶ 19.3." (J.A. 267). Rapazzini & Graham
simultaneously removed Marino’s state court action to the United
States District Court for the Central District of California. Marino
filed a motion for remand. The Judicial Panel on Multi-District Liti-
gation then transferred the case to the United States District Court for
the District of Maryland.

 Judge Motz initially ruled that he possessed jurisdiction to decide
Marino’s claims against Rapazzini & Graham and went on to rule that
6                  MARINO v. PIONEER EDSEL SALES
Marino’s claims were without merit. Judge Motz held that Marino
was not entitled to fees under the Attorney Representation Agreement
because it was rendered nugatory once class counsel, Rapazzini &
Graham, began negotiating the global settlement. Moreover, Judge
Motz found that no individual representation of, inter alia, Pioneer
Honda, ever occurred since the global settlement was entered into
before any individual proceedings took place. Finally, Judge Motz
held that Marino was not entitled to class fees since there was no evi-
dence that she did any work for the class in the Honda Class Action.
No final judgment was entered because the parties settled the case,
with Marino waiving her right to appeal in exchange for a waiver of
costs.

   Approximately three months after Judge Motz rejected Marino’s
claims against Rapazzini & Graham, Marino filed an action against
Pioneer Honda in California state court asserting claims for breach of
contract, fraud, and quantum meruit. In her broadly-worded state
court complaint against Pioneer Honda, Marino, for the most part,
sought to recover attorney’s fees from Pioneer Honda for the work
she asserted she performed in the Honda Class Action, although the
complaint can be construed to include a component for attorney’s fees
for work unrelated to the Honda Class Action. After Marino filed this
action against Pioneer Honda, Pioneer Honda removed the action to
the United States District Court for the Central District of California.

   The district court for the Central District of California sua sponte
issued an order to show cause and requested Pioneer Honda to estab-
lish why the California federal district court had jurisdiction over the
matter. In its ruling remanding the case to state court, the California
district court stated:

    Defendants argue that the appropriate procedural mecha-
    nism to have Judge Motz hear this case is to remove to fed-
    eral court and then have it transferred to Judge Motz through
    the MDL panel. But Defendants have not explained how this
    court, as opposed to Judge Motz, has jurisdiction to hear this
    case in the first instance. While the only proper forum for
    this dispute may well be in front of Judge Motz, Defendants
    are free to assert such a defense in state court. But the exis-
                   MARINO v. PIONEER EDSEL SALES                      7
    tence of that defense does not make this case arise under
    federal law.

    Because Defendants have failed to carry their burden to
    demonstrate how subject matter jurisdiction exists in this
    case, we hereby REMAND the case to state court.

(J.A. 1009-10).

   On January 12, 2001, Pioneer Honda filed a motion before Judge
Motz requesting that he determine if Marino was entitled to any attor-
ney’s fees from Pioneer Honda for any work she asserted she per-
formed in the Honda Class Action. Pioneer Honda filed this motion
pursuant to the dictates of Paragraph 19 of the Borman Settlement
Agreement and Judge Motz’s October 9, 1998 Order of Final Settle-
ment Approval. At approximately the same time, Pioneer Honda filed
a motion to stay and/or dismiss Marino’s action against Pioneer
Honda pending in California state court. In that motion, Pioneer
Honda argued that the only forum to decide Marino’s claim for attor-
ney’s fees for work she allegedly performed in the Honda Class
Action was the United States District Court for the District of Mary-
land. Ultimately, very little took place in state court because the par-
ties proceeded with the matter before Judge Motz. Judge Motz
preliminarily ruled that he had jurisdiction over Marino’s claims for
attorney’s fees earned in connection with the Honda Class Action, but
requested further briefing on the nature of the claims.

   On July 18, 2001, Judge Motz held a hearing. Judge Motz held that
he, as the district judge supervising the Honda Class Action, did have
jurisdiction over Marino’s claims for attorney’s fees earned in con-
nection with the Honda Class Action. Following a hiatus at the par-
ties’ request to pursue mediation, the parties returned to Judge Motz
and agreed to present the matter for his determination, non-jury, on
the basis of written submissions. A briefing schedule was set up and
a hearing was set for August 28, 2002. Marino fully participated in
this procedure up to and including filing a sur-reply trial brief. Two
days before the August 28, 2002 hearing, Marino’s counsel notified
Judge Motz that neither Marino nor her counsel would participate in
the August 28, 2002 hearing.
8                   MARINO v. PIONEER EDSEL SALES
   Marino then petitioned this court for a writ of mandamus prohibit-
ing Judge Motz from holding the August 28, 2002 hearing. Judge
Motz advised Marino’s counsel that he was proceeding with the hear-
ing unless this court issued the writ of mandamus. This court declined
to intervene and the hearing before Judge Motz was held as sched-
uled. Judge Motz ultimately ruled again that he did have jurisdiction
over Marino’s claims for attorney’s fees earned in connection with the
Honda Class Action and then turned to the merits. Finding that Mari-
no’s claims for attorney’s fees were based on a contract which had
been voided by virtue of the Borman Settlement Agreement and the
October 9, 1998 Order of Final Settlement Approval, and finding that
Marino did no compensable work on behalf of the class, Judge Motz
ruled that Marino was not entitled to attorney’s fees for work she
allegedly performed on behalf of Pioneer Honda in connection with
the Honda Class Action. In his ruling, Judge Motz stated that he made
no decision as to any other claims that Marino may, or may not, have
against Pioneer Honda. A final order was entered by the district court
the following day. Marino noted a timely appeal.

                                    II

   On appeal, Marino contends that Judge Motz did not have jurisdic-
tion over Pioneer Honda’s January 12, 2001 motion, filed in the
United States District Court for the District of Maryland, requesting
that Judge Motz determine if Marino was entitled to any attorney’s
fees from Pioneer Honda for work she allegedly performed in connec-
tion with the Honda Class Action. The gist of Marino’s argument is
that Judge Motz improperly removed Marino’s action pending in Cal-
ifornia state court to the United States District Court for the District
of Maryland. In response, Pioneer Honda claims that Judge Motz had
continuing jurisdiction under the Borman Settlement Agreement and
the October 9, 1998 Order of Final Settlement Approval to resolve
any claim for attorney’s fees performed in connection with the Honda
Class Action.

   It is well-settled that a federal court may exercise ancillary jurisdic-
tion to enforce its judgments. Peacock v. Thomas, 

, 354
(1996); see also 28 U.S.C. § 1367(a) ("[I]n any civil action over
which the district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are so
                    MARINO v. PIONEER EDSEL SALES                       9
related to claims in the action . . . that they form part of the same case
and controversy."). While a federal court has the power to retain juris-
diction to enforce its decision, the Supreme Court has cautioned
against the exercise of ancillary jurisdiction "over proceedings that
are entirely new and original." 

(citation and
internal quotation marks omitted). Indeed, ancillary jurisdiction "may
extend to claims having a factual and logical dependence on the pri-
mary lawsuit, . . . but that primary lawsuit must contain an indepen-
dent basis for federal jurisdiction." 

(citation and internal
quotation marks omitted). The Peacock Court reasoned that, while a
proper exercise of enforcement jurisdiction will result in efficiencies
which outweigh comity concerns, an exercise of enforcement jurisdic-
tion over a factually independent proceeding has no practical benefit
for judicial economy. 

v. Guardian Life Insurance Co., 

(1994),
the Supreme Court explained that "[e]nforcement of [a] settlement
agreement . . . is more than just a continuation or renewal of the dis-
missed suit, and hence requires its own basis for jurisdiction." 

In so holding, the Kokkonen Court found that the exercise of
ancillary jurisdiction over a mere breach of a settlement agreement
would further neither of the purposes for which the Court had exer-
cised ancillary jurisdiction in the past: "(1) to permit disposition by
a single court of claims that are, in varying respects and degrees, fac-
tually interdependent, . . .; and (2) to enable a court to function suc-
cessfully, that is, to manage its proceedings, vindicate its authority,
and effectuate its decrees." 

The Court did observe, how-
ever, that a district court’s ancillary jurisdiction "to manage its pro-
ceedings, vindicate its authority, and effectuate its decrees" provides
such an independent jurisdictional basis to enforce a settlement agree-
ment if "the parties’ obligation to comply with the terms of the settle-
ment agreement ha[s] been made part of the order of dismissal." 

The Court specified two ways in which a court may make a
settlement agreement part of its dismissal order: "either by separate
provision (such as a provision ‘retaining jurisdiction’ over the settle-
ment agreement) or by incorporating the terms of the settlement
agreement in the order." Id.1
  1
   The Kokkonen Court made clear that a district court may have ancil-
lary jurisdiction to enforce a settlement agreement even where the previ-
10                  MARINO v. PIONEER EDSEL SALES
   In this case, Judge Motz unquestionably had jurisdiction over Mari-
no’s claim that she was entitled to attorney’s fees from Pioneer Honda
for work she allegedly performed in connection with the Honda Class
Action. The October 9, 1998 Order of Final Settlement Approval
states that the "Court shall have and retain exclusive jurisdiction with
respect to . . . any applications or disputes concerning attorney’s fees
. . . which may arise." (J.A. 1275-76). Marino’s claim that she was
entitled to attorney’s fees from Pioneer Honda for work she per-
formed in connection with the Honda Class Action is clearly an attor-
ney’s fees dispute arising from the Honda Class Action and, therefore,
it was incumbent upon Judge Motz to resolve the dispute.

   In reaching this conclusion, we note that both purposes for which
the Supreme Court has exercised ancillary jurisdiction in the past are
met in this case. Marino’s claims are factually interdependent with
other issues in the Honda Class Action because the amount of attor-
ney’s fees paid for work done in connection with the Honda Class
Action can effect the fairness and reasonableness of the class action
settlement as a whole. More importantly, though, preventing Judge
Motz from deciding whether Marino is entitled to attorney’s fees for
work she allegedly performed in connection with the Honda Class
Action would thwart Judge Motz’s ability to manage the Honda Class
Action. To be sure, in a class action, whether the attorney’s fees come
from a common fund or are otherwise paid, the district court must
exercise its inherent authority to assure that the amount and mode of
payment of attorney’s fees are fair and proper. Thus, when a dispute
concerning attorney’s fees arises, the district court must have continu-
ing jurisdiction to resolve the dispute in order to protect the continued
integrity of its order approving fair and reasonable fees in the first
instance. Moreover, just resolution of the issues raised by attorney’s
fees disputes requires both an intimate working knowledge of what
occurred during the course of the class action and a uniform dispute

ous dismissal was not effected by court order, but rather by the filing of
a stipulation of dismissal signed by all parties pursuant to Federal Rule
of Civil Procedure 41(a)(1)(ii). 

. The Court
noted that, even though Rule 41(a)(1)(ii) "does not by its terms empower
a district court to attach conditions to the parties’ stipulation of dis-
missal," the district court has the authority to make a settlement agree-
ment part of its dismissal order "if the parties agree." 

                   MARINO v. PIONEER EDSEL SALES                     11
resolution process. These are the very reasons the parties in the Honda
Class Action provided for continuing jurisdiction in the Borman Set-
tlement Agreement and the October 9, 1998 Order of Final Settlement
Approval.

   Finally, we make two additional observations. First, we observe
that our decision is consistent with our recent decision in In re Ameri-
can Honda Motor Company, Inc., 

(4th Cir.), cert.
denied, 

(U.S. October 6, 2003). In that case, Judge
Motz entered an injunction forbidding the plaintiffs from enforcing a
favorable arbitration award, where that award resulted from the plain-
tiffs’ arguing to the arbitrator that they had not been compensated
adequately by the Borman Settlement Agreement and the October 9,
1998 Order of Final Settlement Approval. 

According
to the plaintiffs, they were entitled to over seven million dollars in
blue sky damages that they would have received if their case had been
properly handled by one of their former attorneys. 

Because
this argument required the arbitrator to interpret the Borman Settle-
ment Agreement and the October 9, 1998 Order of Final Settlement
Approval, we held that the district court had jurisdiction pursuant to
the All Writs Act and that an injunction enjoining a state court action
was not prohibited by the Anti-Injunction Act because the injunction
was necessary to prevent the direct frustration of the Borman Settle-
ment Agreement and the October 9, 1998 Order of Final Settlement
Approval. 

   Like In re American Honda Motor Company, Inc., this case
required Judge Motz to interpret the Borman Settlement Agreement
and the October 9, 1998 Order of Final Settlement Approval. In inter-
preting the Borman Settlement Agreement and the October 9, 1998
Order of Final Settlement Approval, Judge Motz determined that they
rendered nugatory the Attorney Representation Agreement. Obvi-
ously, preventing Judge Motz from interpreting the Borman Settle-
ment Agreement and the October 9, 1998 Order of Final Settlement
Approval would result in the direct frustration of the Borman Settle-
ment Agreement and the October 9, 1998 Order of Final Settlement
Approval. To be sure, a conclusion that Judge Motz erred in assuming
jurisdiction could lead to conflicting results across the country. For
example, the state court in California in this case could hold that the
Borman Settlement Agreement and the October 9, 1998 Order of
12                   MARINO v. PIONEER EDSEL SALES
Final Settlement Approval does not render nugatory the Attorney
Representation Agreement. However, another state court confronted
with the same facts could hold that the Borman Settlement Agreement
and the October 9, 1998 Order of Final Settlement Approval does
trump an agreement similar to the Attorney Representation Agree-
ment. Because conflicting results could occur across the country, it
makes intuitive sense to conclude that Judge Motz appropriately
assumed jurisdiction in this case.

   Second, we observe that Judge Motz did not countermand the Cali-
fornia federal district court’s remand order when Judge Motz ruled on
Pioneer Honda’s January 12, 2001 motion requesting that he deter-
mine whether Marino was entitled to any attorney’s fees from Pioneer
Honda because Marino’s California state court action was never
removed to the United States District Court for the District of Mary-
land. Indeed, the California state court action remains in state court
at this time. Simply put, Pioneer Honda brought an independent
motion to Judge Motz pursuant to the dictates of the Borman Settle-
ment Agreement and the October 9, 1998 Order of Final Settlement
Approval. The only issue presented to Judge Motz pursuant to this
motion was whether Marino was entitled to recover any attorney’s
fees for work she allegedly performed in the Honda Class Action.
Judge Motz made it clear that the only issue he decided was Marino’s
entitlement to such fees. Judge Motz stated that he made no decision
as to any other claims that Marino may, or may not, have against Pio-
neer Honda. If Marino has additional claims to bring against Pioneer
Honda, other than those for attorney’s fees for work she allegedly per-
formed in the Honda Class Action, Marino obviously can pursue
those claims in California state court or in other appropriate jurisdic-
tions.2
  2
    We note that Marino’s reliance on the Supreme Court’s decision in
Syngenta Crop Protection, Inc. v. Henson, 

(2002), is mis-
placed. In Syngenta Crop Protection, Inc., the Court reaffirmed the well-
settled principle that neither the All Writs Act nor the doctrine of ancil-
lary jurisdiction can confer subject matter jurisdiction in its own right. 

Unlike Syngenta Crop Protection, Inc., in this case, there is no
question that the district court had jurisdiction to decide whether an attor-
ney was entitled to attorney’s fees for work allegedly performed in the
Honda Class Action. Thus, the doctrine of ancillary jurisdiction merely
authorized the district court in this case to decide an issue over which it
already had jurisdiction.
                   MARINO v. PIONEER EDSEL SALES                    13
  In sum, we harbor no doubt that Judge Motz had jurisdiction to
decide whether Marino was entitled to any attorney’s fees from Pio-
neer Honda for work she allegedly performed in the Honda Class
Action.

                                  III

   For the reasons stated herein, the judgment of the district court is
affirmed.

                                                          AFFIRMED