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- Simple yet fashionable, this pair of Woodland off white sneakers is an apt pick for fashion-forward men. Apart from being trendy, it promises optimum comfort even if you wear it all day long. Featuring a convenient closure and an attractive design, it will go well with your daily outfits.
- Sole Material - Rubber
- Color Family - White
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How To Trade Using Indicators – Pitfalls To Watch Out For!
Don't miss the point – Price action always wins
Trading indicators are to be used to enhance your experience and not hinder them. Please remember that ALL indicators precede price action. Your first information is also the best and un-filtered, you have to use price action WITH indicators. Indicators by themselves only 'indicate' or give a hint towards possible oversold/overbought zones or upcoming tiredness of momentum. Look at this chart below of ACC, the company is one of the leading manufacturers of cement in India. Notice the red bar where we have drawn a black line, the MACD (Assuming your sell a crossover) is signalling a sell. On the other hand the price action is in an uptrend (moving higher fiercely) and we are within a consolidation pattern; they are also know as continuation patterns. They are temporary pause within a trend that allow the absorption of supply and usually will break upwards. Now the question is, will we sell because the MACD said so? You should NOT, price action always comes first. In this case, the markets broke out. Remember: Price action comes first, indicators should compliment your trading not confuse you
Indicator Redundancy – Multicollinearity is your enemy
Traders use the same data over and over again thereby using redundant information, multicollinearity means counting the same information twice or more. As we talked about before we have indicators that measure momentum and indicators that measure trend direction. New traders usually use the same type of information twice or more which brings down their probability of success.
The idea is to KISS – Analysis Paralysis
Keep It Simple Silly is a popular term professional traders use to describe the state of mind new traders are pushed into. They overcomplicate their charts/investment-strategies with many indicators that contradict and instead of improving our trading they damage our account and psychological state of mind to no end. Fear rises to the top of our head and we hit 'Analysis Paralysis'. This is a state of mind where the trader can only go as far as analysisng, the fear developed over a few bad trades prevents him from taking any trades. Don't get into this state, keep this simple. A chart below shows the use of an overcomplicated chart that will only result in information overload, focus on PRICE and the rest will follow!
Magic indicator – Ultimate
The knights templar may have been hiding the holy grail but traders get into an amazing almost possessed search for a good indicator, then they search for the 'best' indicator, finally they enter the realm of no return by trying to find the 'ultimate magic best in the world' indicator. If you are in stage three of this disease let me save you some time and tell you that there is no such thing. The ingredients to a successful trader have less to do with indicators or methodology and more to do with discipline(following your trading plan).
Risk – Managed?
Finally, is your risk managed? Do you have a well laid out risk management plan? Make sure you do not lose more than a small portion on every trade you make; there are traders who lose their entire capital on 1 or 2 trades. DO NOT make this mistake, if you capital is 10 lakhs, make sure you do not lose more than Rs 5,000 or 10,000 per trade. We can all be wrong, if you keep trade sizes small you will live to see another day and still have a chance to ride winners big. If you found the article helpful, please use the buttons below to show some love
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Sorry! The position you're looking for is no longer available. Check out other Sports internships in New York below.
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JCC Maccabi Summer Internship
JCC Association of NA — New York, NY
December 05 2016
The JCC Association is looking for an intern to join the JCC Maccabi team. The JCC Maccabi Games are an exciting, Olympic-style event for Jewish teens from across the country. JCC Maccabi ArtsFest is …
Application Deadline: 5/12/2017
Part time
Events Internship (Spring 2017)
THUZIO — New York, NY
December 04 2016
Position: Events Intern Reports to: Director, Events What we do: Thuzio empowers brands and businesses to grow by leveraging influential people, content and experiences. Thuzios two unique products Ju…
Application Deadline: 1/13/2017
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Sports Marketing Spring Semester Intern
Seaters — New York, NY
December 02 2016
Ever notice that there are empty seats at sold out events and wonder why they are taken? Seaters connects you with organizers and sponsors of your favorite events to offer you the best seats in the ho…
Application Deadline: 12/31/2016
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VIDEO EDITING Internship for Action Sports Brand
Filipacchi — New York, NY
December 01 2016
New York Based, Designer Accessory and Action Sports brand is seeking a talented and enthusiastic Video Editing intern for our fast-paced and challenging design group. Intern will be responsible for a…
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Program Assistant Intern
World Federation of United Nations Associations (WFUNA) — New York, NY
December 01 2016
The World Federation of United Nations Associations (WFUNA) is a global nonprofit organization working for a stronger and more effective United Nations. Established in 1946, we represent and coordinat…
Application Deadline: 12/31/2016
Full time
2017 New York City Triathlon Sports Management Internship
New York City Triathlon — New York, NY
November 30 2016
The Life Time Media and Events office is a team of passionate professionals, creative marketers, and event gurus. We work REALLY hard, but we make it a point to have fun. We are looking for 3 rock sta…
Application Deadline: 3/15/2017
Full time Paid
Business Development / Sales Intern
The Need 2 Know — New York, NY
November 30 2016
Need 2 know is one of the fastest growing media companies. Need 2 Know is a weekday morning newsletter that brings you quick shots of the days top stories in world events, politics, business, tech, sp…
Application Deadline: Available Year-round
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Graduate Sports Information Intern
College of Mt. St. Vincent — Bronx, NY
November 30 2016
About the College: The College of Mount Saint Vincent is a Division III athletics program with 15 varsity teams, which compete in the Skyline Conference. We have state of the art facilities, including…
Application Deadline: 12/15/2016
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Social Media/Marketing Expert needed for Sports Nutrition Brand
VMI Sports — Hicksville, NY
November 29 2016
We are a Sports Nutrition supplement company who is seeking a talented marketing & social media person to help our brand grow even more.
Application Deadline: Available Year-round
Part time Paid
NERD ALERT: Daily Content Writers Needed!
spoiled NYC — New York, NY
November 29 2016
HEY YOUUUU GUYYZZZ! spoiled NYC is growing, and we're looking to flesh out our editorial team with a few bright and talented goons. What is spoiled NYC? spoiled NYC is the digital platform for spoiled…
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At the most powerful companies in Silicon Valley, small teams of anonymous, diehard music fans race to solve the music industry's toughest problem.
Right after he took office, Barack Obama promised to do away with torture. But documents obtained by BuzzFeed News show for the first time how a harsh interrogation tactic thrived on his watch in Afghanistan. Human rights advocates said it could be inhumane and illegal.
Any elite athlete is under pressure to excel. World champion gymnast Simone Biles is under pressure to be inevitable.
As Europe struggles to handle its refugee crisis, people running from the 14 year-long war in Afghanistan find themselves left on the outside. BuzzFeed News' Jina Moore reports from Lesbos, Greece.
Ken Roh moved to the United States from South Korea 43 years ago. Now, he's running a pro–North Korea website, the most visible of a small group of Pyongyang's devotees in the U.S.
To be black in America is to exist in haunting, mundane proximity to death at all moments.
Television's obsession with the tiny house "revolution" is lighting up conversations about class, race, and even the politics of housing regulation.
This week for BuzzFeed News, Reggie Ugwu meets the stream weavers. Read that and these other great stories from BuzzFeed and around the web.
"It's like Kids Company." Luxury gifts and first-class travel for executives. Home Office grants spent in 24 hours. Warnings ignored by trustees and the Charity Commission. A BuzzFeed News investigation into the closure of Broken Rainbow.
The Southern Arkansas University police chief allegedly told Taylor Moore that no crime was committed when she was groped in a dorm room. A prosecutor said that a jury wouldn't convict the alleged assailant anyway. Nearly seven months later, a city attorney is considering misdemeanor charges.
In the days after the Pulse massacre, performers in Orlando's LGBT club scene were recovering from trauma and mourning their friends. But because people have flocked to Orlando's other gay bars, and because the rent needs to get paid, LGBT nightlife staffers have had to work through their pain in public — not to mention the emotional labor involved in being the face of a national tragedy. Here's how they're coping: in stolen, private moments among the queer families that love them.
Michael Katze, famous for his studies of Ebola and the flu, ran a lab at the University of Washington where intoxication and sexual harassment went unchecked, and where he misused public resources for personal gain, according to two investigations obtained by BuzzFeed News.
This week for BuzzFeed News, Dvora Meyers meets gymnastics phenom Simone Biles. Read that and these other great stories from BuzzFeed and around the web.
Linda Cox overcame discrimination, ridicule, and explosives to become the military's first female bomb technician over 40 years ago. Just don't call her a feminist role model.
Patients get beaten. Their assailants walk free. New York's special agency dedicated to preventing abuse has vast prosecutorial power – and hardly ever uses it.
The attack on Istanbul's Ataturk Airport shows how the country has gone from a destination for international commerce and tourism to becoming a magnet for terrorist violence.
The most iconic image of racist brutality in America would have looked different had James Cameron not survived a lynching attempt in Indiana in 1930. He devoted the rest of his life not just to civil rights, but to memorializing the moment of his near death.
Uber data suggests that drivers overall in three major U.S. markets — Denver, Detroit, and Houston — earned less than $13.25 an hour after expenses in late 2015, according to calculations based on more than a million trips.
As science fiction's most venerable franchise marks its 50th anniversary with a new movie and its first new TV series in over a decade, the chance to unify and mobilize its famously devoted — and demanding — fanbase may be the true final frontier.
This week for BuzzFeed News, Syreeta McFadden tells the miraculous story of the only known lynching survivor in America. Read that and these other great stories from BuzzFeed and around the web.
This week for BuzzFeed News, Brian Castner meet the first woman to disarm bombs for the U.S. military. Read that and these other great stories from BuzzFeed and around the web.
Nineteen people have been arrested and nine of them charged with money laundering after BuzzFeed News revealed Lycamobile's "deeply suspicious" cash movements.
Nearly 40 years ago, nine men died when a fire broke out in a bathhouse in Manhattan. What's changed, and what hasn't, in the interim.
Best known for her support of an Oregon militia's armed standoff against the federal government, Michele Fiore is now trying to become part of that government. Even if she loses her bid for Congress, this literal calendar girl for the guns-for-everyone movement is the face of a political fringe that is slowly pushing itself towards the mainstream.
Paying homage to a beloved movie by selling thousands of tickets for a weekend-long, city-wide re-creation takes military precision and logistical expertise. But David Blanchard has never done anything like this before.
A Deadhead turned medical marijuana and criminal defense lawyer from Southern California has made himself into the country's leading defender of hackers. Can he save his clients from the worst law in technology — and themselves?
Overlooking terrorism that killed Americans, including the bombing of Pan Am Flight 103 over Lockerbie, Donald Trump sought investment partnerships with Muammar al-Qaddafi and the Libyan regime. He rented his Westchester estate to the dictator, tried to set up a face-to-face meeting, and took the Libyan ambassador golfing.
The AIDS epidemic can be ended with current drugs — in theory. Now, a rural village in impoverished Zimbabwe has figured out how to help end the epidemic in real life, and they've done it in a simple, low-tech, and inexpensive way.
A former Stanford swimmer who sexually assaulted an unconscious woman was sentenced to six months in jail because a longer sentence would have "a severe impact on him," according to a judge. At his sentencing Thursday, his victim read him a letter describing the "severe impact" the assault had on her.
This week for BuzzFeed News, Adam B. Vary ventures deep into the galaxy of Star Trek fandom. Read that and these other great stories from BuzzFeed and around the web.
In 1969, the Zombies had a huge hit single, despite having broken up two years earlier. To meet the unexpected demand, one promoter did the only sensible thing: hire four kids from Texas to tour America pretending to be a defunct British psych-rock band.
This week for BuzzFeed News, Kayleen Schaefer finds out life really does move fast. Read that and these other great stories from BuzzFeed and around the web.
Six years after opening its first salon, the chain is on track to do $100 million in sales this year. Here's how it got there.
Politicians called it a symbol of European failure. Media reports called it squalid. But until it was bulldozed this week, the Idomeni refugee camp offered hope to the thousands of people who lived there. Jina Moore reports for BuzzFeed News.
E-cigs are more popular than ever — but they're also exploding in vapers' faces at an alarming rate. Will new regulations be enough?
The mother of the "kind and softly spoken" Londoner outed as a member of Jihadi John's "Beatles" execution cell tells BuzzFeed News how she lost both her "perfect" sons to ISIS.
This week for BuzzFeed News, Daniel Ralston uncovers one of the strangest capers in rock history. Read that and these other great stories from BuzzFeed and around the web.
For over a century, fraternal orders like the Elks served as the cornerstone of American social and civic engagement. Here's how one Seattle neighborhood has made the Elks, and the community it provides, cool again.
In a remote conference room in Tennessee, some of America's most prominent white nationalists and many in the alt-right gathered last weekend for an annual meeting. This year, however, is different.
After their husbands — including many who were caught up in Mexico's drug cartels — vanished or were killed, these women have put their blood, sweat, tears, and hopes into a small ramshackle factory. BuzzFeed News' Karla Zabludovsky reports from Apatzingán, Mexico.


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The average cost for a CV Joint Boot Replacement is between $622 and $711. Labor costs are estimated between $334 and $422 while parts are priced between $288 and $289. Estimate does not include taxes and fees.
CV Joint Boot Replacement Cost for BMW 530i
CV Joint Boot Replacement Estimate (National Average)
Validated estimate range for national average.
View Estimate Details
Parts & Labor Breakdown
Labor: $334 - $422
Parts: $288 - $289
Estimate does not include taxes and fees.
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text: Powermanager is started through this file: /usr/share/autostart/guidance-power-manager.desktop I agree that this should be made configurable. For now, it is easiest to just remove "kde-guidance-powermanager" package completely if you do not use it. ** Changed in: kde-guidance (Ubuntu) Importance: Undecided => Wishlist Assignee: (unassigned) => Luka Renko (lure) Status: New => Triaged -- Can't prevent guidance from starting on login https://bugs.launchpad.net/bugs/127149 You received this bug notification because you are a member of Kubuntu Team, which is a bug contact for kde-guidance in ubuntu.


text:
Best Fishing Times: 11:30PM to 1:30AM, and 12:09PM to 2:09PM
Alternate Fishing Times: 5:52AM to 7:52AM
Fishing Blueberry Creek, AB on 12/8/2016 will be best from 11:30PM through 1:30AM, and from 12:09PM to 2:09PM. If those times won't work for you, 5:52AM to 7:52AM looks promising. Remember to adjust these times based on barometric pressure, and weather changes.


text:
How many miles? 146 Miles / 234 Km
How many times? 2 hours 43 mins
Distance from Springerville, AZ to Silver City, NM is 146Miles or 234 Km. You can get this distance about 2 hours 43 mins. If you want to planning travel with plane for 111 Miles or 179 Km, You can get this distance about 44 mins .
A car with an average MPG will needs 6.76 gallons of gas to get the route between these points.
The estimated cost of gas to get between Springerville, AZ and Silver City, NM is $15.35.
During the route, an average car will release 132.44 pounds of CO2 to the atmosphere. Your carbon footprint is 0.91 pounds of CO2 per mile.
* Average US MPG used for calculations is 21.6 MPG.
* Average US gas price used for calculation is 2.27 per gallon.
* Coordinates of Springerville, AZ is 34.1333566, -109.2858713 and coordinates of Silver City, NM is 32.7700691, -108.2802742
All Rights Reserved. © 2010 - 2016 Feedback


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Yara/CF Industries24 Sep 2014
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Yara reveals early talks with CF Industries over 'merger of equals'
Yara International, the Norwegian fertiliser group 41%-owned by one of the country's state investment funds, revealed on Tuesday that it is in preliminary discussions with US-based CF Industries over a "merger of equals".
A combination of the two businesses would lead to the creation of a giant agricultural crop nutrient producer, with a market value of almost $27bn.


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Owner Financing Homes in Nottingham, PA
|17 Listings Found
of the residence is eligible for a USDA financing. To View Pictures and Extra Info, Paste this link and replicate
1 Bath156 Drive Jack Roadway, Bainbridge, MD, 21904Details »
Richmond Hills, located on Charles Street, Perryville, MD 21903. Owner financing available. 10
Perryville, MD, 21903Details »
The total parcel is +/-42.12 acres of gently-rolling farm field with a cluster of woods, and an 1850 farm house that needs some TLC....
Havre De Grace, MDDetails »
I AM CONSIDERING ALL OFFERS OVER $160,000 FOR THE NEXT 30 DAYS jerzy wirth (owner).. .property
490 School Rd, Lincoln University, PA, 19352Details »
/ Undevloped Land in Residential Historic Zoning. Possible Owner Financing / Inslmnt. May be purchased
144 Main St, Strasburg, PA, 17579Details »
Share Listing | Potential owner financing or Rent to Own... Totally updated in 2007 from
1120 Willow St, Coatesville, PA, 19320Details »
with natural light. The owner has put over $10k in upgrades to this already newer townhome. Featured upgrades
2 Branford Way, Coatesville, PA, 19320Details »
, Owner Financing: NO, Sewer Type: City Provided, Is an Agent Allowed: NO, Garage Attached: Attached
109 Cook Way, Newark, DE, 19711Details »
space. Detached 1 car garage w/ shed for storage. Contact the Owner Dave Holm for more details. 717
1709 Wiker Avenue, Lancaster, PA, 17602Details »
Cute ranch on a corner lot is just waiting for its new owners! This home features a spacious living
2 Darby Road, Newark, DE, 19711Details »
neighborhood with a Church in front yard! Contact Owner Dave Holm for more details on this lovely home! 717
210 Reese Avenue, Lancaster, PA, 17602Details »
BACK ON MARKET FINANCING FELL THROUGH **THE BUY OF THE CENTURY- MUST SELL THIS WEEK! Show Nicely
2052 Knotty Pine, Abingdon, MD, 21009Details »
School District: Christiana, Heat Type: Oil, Air Type: Central A/C, Pool: NO, Owner Financing: NO
32 Tysons Ford Road, Newark, DE, 19711Details »
Popular With Home Owners And 1st Time Buyers. This Bank Owned Foreclosed Home is a great investor
Abingdon, MD, 21009Details »
Owner will finance! No Banks Needed! Your job is your credit!Live the way you deserve
116 Marley Rd, Middletown, DE, 19709Details »
RentUntilYouOwn.com is the #1 provider of Nottingham, Pennsylvania owner financing homes listings.
Our goal is to offer the highest quality results, along with helpful Nottingham resources and support. We understand that finding genuine owner financing homes in Nottingham can be very difficult. Even more challenging is trying to search Nottingham, PA listings for free.
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In a profound and chilling poem--a Coretta Scott King and Printz Honor book--award-winning poet Nelson reminds readers of the young boy whose fate helped spark the civil rights movement. Full color.
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In a profound and chilling poem--a Coretta Scott King and Printz Honor book--award-winning poet Nelson reminds readers of the young boy whose fate helped spark the civil rights movement. Full color.
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The Pageturner
Apr 8, 2007
"I MEMEORIZED AND CAN RECITE YOUR BOOK!" was the first sentence of the second email I sent to author Marilyn Nelson. "Genius" is an understatement for this inspiring work elegantly jam packed with stunning figurative language. Nelson uses pieces of history, other writings, plants, and various other things and intricately entwines them into an honorable wreath for Emmett Till. But what makes this book even more astounding is the fact that the author used a heroic crown of Petrarchan sonnets in iambic pentameter to pull the reader into a realm of horror, sorrow, and new beginnings. The illustrator Philippe Lary also did a magnificent job using sybolism to perfectly match Nelson's words. I honestly wish that this book gets the respect that it deserves and should be a part of every school's literature.
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What can happen at the intersection of art and technology? That's the question posed by this conference, which pairs creatives from both fields and gives them a single day to create a new concept, app or prototype. This year's hotshots include hacker and former Obama for America CTO Harper Reed, Foursquare's Dennis Crowley and artist-musician Fatima Al Qadiri. After a keynote address by New York Times journalist and author Evgeny Morozov, the seven duos will present the results of their collaboration and take questions from the audience. Go to rhizome.org/sevenonseven for more information.
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822 Hartzell Street | Pacific Palisades
- Sold
Beautiful authentic "Spanish Revival" house heavily redone and expanded in 2008. Extremely light and bright throughout. This incredibly custom detailed two story home includes 4 bedrooms, 3.5 bathrooms with walnut floors and plaster walls throughout, incredible soaring ceilings with intricate wood details in numerous rooms and cathedral style windows, truly bring old world charm to the new age. First floor features a living room, dining room, custom kitchen with Viking appliances and Calcutta marble that opens to a family room and breakfast area that can double as a junior dining room for intimate settings. This hexagon shaped breakfast room boasts custom, tall wood framed windows that allow for ample light. A gracious guest room/office and wood burning fireplaces in the living room and family room complete a very well laid out first floor.
Dramatic, semi-circular staircase with baroque chandelier, ornate tile detailing and wrought iron railing leads to an open second floor landing. 3 on-suite bedrooms including a phenomenal master bedroom with private balcony, walk-in closet and spa-like master bathroom that features Thasos marble and a massive steam shower with bench and separate soaking tub. With two separate courtyards that feature over 200-year-old reclaimed pavers from a French chateau on the ground, surrounded by mature foliage and fountains this home combines the ultimate in California indoor/outdoor lifestyle living with an authentic European flair. Stone's throw to the village and incredibly easy access in and out of the Palisades.


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$1,500.00 3 months ago
Sidewinder SportZ Recumbent Trike,Splash Guard,Cargo Bag,Cyclocomputer - $1500 (Salt Lake City area)
Please NO TEXTS. Phone calls only, as I've had too many scammers texting. I have a Sidewinder SportZ recumbent trike, with a splash guard and many accessories and all the original paperwork and manuals. 4 years old, used on average about once every month or two (due to health issues I've had at times since then).Incredibly comfortable, like a beach chair on wheels! Suitable for anyone, but if you
3 months ago
Salt Lake City, UT
$300.00 3 months ago
Rebuilt single speed with hybrid tires - $300
This is an SE singlespeed frame that I rebuilt with a lot of new and used parts. It's got a new velo-orange bottom bracket, new stem, brake pads, levers, cables, and housing, and a new chainring, plus classic mountain bike riser bars and grips, and 700x35c hybrid tires--wider than traditional road tires for extra comfort, built in kevlar liners for fewer flats, and knobs on the side for extra trac
3 months ago
New Orleans, LA
$650.00 3 months ago
'74 Raleigh Grand Prix (Modernized) - $650 (Knox)
Here's my 1974 Raleigh that I decided I was going to turn into a touring bike for the Mediterranean next Spring.I've learned a hard lesson here...The bike, in the end, no matter what I do, is simply too big for me. I'm 5' 7"I spent a lot of money on this build because it was my baby. It's a wonderful bike and I love it....But for touring, precise bike fit is essential.After all the measuring, and
3 months ago
Erie, PA
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Americane Vintage Road & Track Bike Show - Sunday Aug. 21st, Rochester (Rochester Hills)
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Lakeland, FL
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Spokane, WA
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Worcester, MA
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Trek Marlin 17.5" Frame Bicycle - $450 (Chambersburg)
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Dutch Bunny Like Bette's Oceanview Diner
Total Time
Prep 10 mins
Cook 20 mins
Nice alternative to ordinary pancakes.
Ingredients Nutrition
- 3 eggs
- 3⁄4 cup milk
- 3⁄4 cup flour
- 1⁄2 teaspoon salt
- 1⁄2 cup butter
- 2 ripe bananas, peeled and sliced
- 1⁄2 lemon, juice of
- powdered sugar, as needed
- Preheat the oven to 450°F
- Beat together eggs and milk until well blended. Add the flour and salt; stir with a fork until just combined. The batter will be a little lumpy.
- Melt butter in an oven-proof 12-inch skillet, preferably seasoned cast iron. When the butter sizzles, add the banana slices. Pour the batter on top.
- Place in the oven and bake for about 20 minutes, until the pancake is puffed up and golden.
- Drizzle the lemon juice over the top, then sift powdered sugar over all. Serve immediately.
- Variation: You may substitute 2 sliced peeled tart apples for the bananas. Saute the apple slices in the butter and season with 3 tablespoons sugar, 1/4 teaspoon cinnamon and 2 tablespoons lemon juice before adding the batter.
Most Helpful
This both looked and tasted really good. I cut down the amount of butter to just under half though, and then rubbed a little on the top of it when it came out of the oven. I did actually use a tablespoon or so of brown sugar over my bananas, which was good. Also, I didn't realize I was out of powdered sugar, so I ended up using a little cinnamon & sugar over the top..I will make this again, for sure, but next time I will use the suggested lemon and powdered sugar on top..I think that will be even better.
I love Dutch Babies and this was made a very hearty breakfast for the 2 of us. Smart Balance spread was used instead of the butter and only about 2 tablespoons. Egg substitute was used for the eggs and the banana was reduced to 1. This was cooked in a well seasoned 6-inch cast iron skillet. I do think that sprinkling a tablespoon or so of brown sugar over the bananas would be delicious. Made for *PAC Spring 2008*


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July 8, 2009
ERNEST KEITH WILKERSON, PLAINTIFF,v.RASHIDA BROWN, ET AL., DEFENDANTS.
This matter is before the Court upon Defendant Steve Hallett's motion to dismiss Plaintiff's Complaint pursuant to Rule 41(b), Fed. R. Civ. P. [Docket Item 135]. Plaintiff Ernest Keith Wilkerson, proceeding pro se, filed this diversity action against his ex-girlfriend, Rashida Brown, and numerous individuals, including Defendant Hallett, whom Plaintiff alleges were instrumental in enabling Ms. Brown to steal money from him. In 1999, after substantial discovery and motion practice, this case was "temporarily stayed and administratively terminated upon the docket of the Court without prejudice to reopening by any party" because, owing to Plaintiff's incarceration, the dispute could not be brought to trial. (Docket Item 119 at 1.) Upon his release from prison, Plaintiff moved to reopen this case, and, after the Court granted Plaintiff's motion, Defendant Hallett filed the motion to dismiss presently before the Court. For the reasons set forth below, Defendant Hallett's motion will be denied.
The facts underlying Plaintiff's claims were reviewed in detail in the Court's June 22, 1998 Opinion [Docket Item 105], and are reviewed herein only to the extent necessary to resolve the motion presently under consideration. Plaintiff was incarcerated between 1994 and July 26, 2008. (Docket Item 105 at 3; Wilkerson Cert. ¶ 3.) While he was incarcerated, Plaintiff asked his then-girlfriend, Ms. Brown, to take possession of his automobile for the duration of his imprisonment. (Docket Item 105 at 3.) According to Plaintiff's allegations, Ms. Brown did more than simply take possession of the vehicle; Ms. Brown, Plaintiff alleges, forged alterations to the automobile's certificate of title papers to falsely indicate that Plaintiff had sold the vehicle to Ms. Brown for $1,000. (Id.)
Plaintiff further alleges that Ms. Brown intended to steal money from his bank account, and in pursuit of this end, approached Defendant Hallett, an attorney, about obtaining a Power of Attorney ("POA") to access Plaintiff's account. (Id. at 4.) On September 26, 1994, Defendant Hallett prepared a POA for Brown, witnessed by his secretary, Marion Jefferson. (Id.) Although Plaintiff's signature appears on the POA, (id.), Plaintiff maintains that Hallett never visited him in prison in order to have Plaintiff execute the POA, and that the signature on the document is a forgery. (Wilkerson Cert. ¶ 8.) According to Plaintiff, Ms. Brown used the forged POA to steal money from Plaintiff's bank account. (Docket Item 105 at 4.) Defendant Hallett maintains that he did visit Plaintiff in prison in order to obtain Plaintiff's signature on the POA and denies that the signature was forged.
Plaintiff filed the Complaint [Docket Item 1] in this case on October 21, 1996, naming Ms. Brown, Mr. Hallett, and numerous other individuals as Defendants and alleging that Ms. Brown and Mr. Hallett, among others, had a role in the theft of his vehicle and money. On June 17, 1997, Defendant Hallett filed a motion to dismiss for lack of subject matter jurisdiction [Docket Item 51], which this Court denied in its July 10, 1997 Memorandum Opinion and Order [Docket Items 57 and 58]. After the parties had conducted discovery, Defendant Hallett, as well as Defendants Rodney Thompson, Esq., Randy Lebowitz, and Northeast Auto, each filed motions for summary judgment, which the Court addressed in its June 22, 1998 Opinion and Order [Docket Items 105 and 106]. As to Defendant Hallett's motion, the Court found that disputed questions of fact existed as to whether Defendant Hallett created a POA with a forged signature, making summary judgment inappropriate. (Docket Item 105 at 9.) As to Defendants Thompson, Lebowitz, and Northeast Auto, the Court determined that no dispute existed as to any material fact regarding Plaintiff's claims against these Defendants, and that these Defendants were entitled to judgment as a matter of law. (Id. at 9-12.)
On December 30, 1999, the Court entered an Order for Administrative Termination, wherein it observed that "the case is essentially ready for trial but . . . it is a private tort action unrelated to conditions of confinement that cannot be prosecuted at trial by plaintiff at this time due to plaintiff's incarceration." (Docket Item 119 at 1.) The Court accordingly concluded that "the case should therefore be temporarily stayed and administratively terminated upon the docket of the Court . . . . without prejudice to the right of any party to reopen for further proceedings consistent with law, including upon plaintiff's release from incarceration[.]" (Id. at 1-2) (emphasis added).
Plaintiff was released from prison on July 26, 2008. (Wilkerson Cert. ¶ 3.) Approximately two months after his release, Plaintiff filed a motion seeking to reopen this case [Docket Item 120] in order to pursue his claim against Defendant Hallett exclusively. Defendant Hallett opposed Plaintiff's motion, stating in a November 5, 2008 letter [Docket Item 123] that he believed that Plaintiff's claims against him had been dismissed with prejudice. Hallett also contested the merits of Plaintiff's claims, explaining:
Yes, I was his attorney prior to his request that I execute the Power of Attorney (in question) to his girlfriend (one of the original defendants in his case). I did not ask him why he wanted a Full Power of Attorney executed. I had my suspicions that he was attempting to give his girlfriend the right to Full Power of Attorney to:
1. He wanted her to place his assets in her name to hide them from the Feds who arrested him.
2. To place his automobile in her name to store it or sell it.
3. She was the only one he trusted to handle his affairs.
Power of Attorney was explained to him in detail; both Limited and Full Power of Attorney.
(Docket Item 123 at 2.)
In its November 7, 2008 Order, the Court granted Plaintiff's motion to reopen this Docket. The Court explained:
Plaintiff asserts that he was incarcerated in federal prison until his release on July 26, 2008. He filed this motion approximately two months after his release, which the Court finds to have been reasonably prompt. The reopening is opposed by Defendant Steve Hallett, Esquire, who indicates that he was unaware that the case had not been dismissed but merely administratively terminated without prejudice to reopen when Mr. Wilkerson was freed from imprisonment. At the time of the entry of the administrative termination, Mr. Hallett was represented by Vera E. Carpenter, Esquire, to whom the termination notice would have been sent. While it has been almost nine years since the case was administratively terminated, it was within the contemplation of the Court and, presumably, all parties that the case would be frozen in place during Mr. Wilkerson's incarceration.
The Court is not able to determine that Mr. Hallett would be so prejudiced by the passage of time that he is unable to fairly be called upon to complete the defense of this case. Mr. Hallett's opposition letter, dated October 28, 2008, objects to being named as the sole targeted defendant in the reopened action, and it reveals that Mr. Hallett still appears to have a rather fresh memory of the events giving rise to this case, as recited in his letter to the Court . . . .
Because an Order for Administrative Termination is a docket control device, and not an Order for Dismissal, the case may be freely restored to the docket upon a timely application to do so. The Order of December 30, 1999 anticipated that a period of years might well pass before the docket could be reopened . . . .
Under all these circumstances, the Court is constrained to grant plaintiff's motion to reopen the case. The case shall go forward only against defendant Hallett and not as to any other remaining defendant. The Court makes no determinations at this time regarding issues such as laches or spoliation of evidence.
(Docket Item 124 at 2-4.) Three months after this matter was reopened, Defendant Hallett filed the motion to dismiss presently under consideration [Docket Item 135], to the merits of which the Court now turns.
Defendant Hallett has moved to dismiss Plaintiff's claims against him, arguing that dismissal is appropriate pursuant to Rule 41(b), Fed. R. Civ. P. (dismissal for failure to prosecute), the equitable doctrine of laches, and on account of spoliation of evidence. The Court addresses these arguments in turn below.
A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 41(b)
1. Standard of Review
"Federal Rule of Civil Procedure 41(b) permits a District Court to dismiss a plaintiff's case for failure to prosecute." Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008); see Fed. R. Civ. P. 41(b) ("If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it."). When considering a motion to dismiss pursuant to Rule 41(b), the Court weighs the six factors identified by the Court of Appeals in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). See Briscoe, 538 F.3d at 258 (applying Poulis factors to Rule 41(b) motion). Those factors are:
(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis, 747 F.2d at 868 (emphasis omitted).
"While the appropriateness of dismissal is not contingent upon the satisfaction of all six factors in a given case, 'the resolution of any doubts [must be] in favor of adjudication on the merits.'" Bowers v. National Collegiate Athletic Ass'n, 564 F. Supp. 2d 322, 334 (D.N.J. 2008) (quoting United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 162 (3d Cir. 2003)). Moreover, "[i]n the jurisprudence of dismissal, willfulness or bad faith is almost always required in order for dismissal to be within the proper scope of the court's discretion." Id. at 340 (quoting Estate of Spear v. C.I.R., 41 F.3d 103, 111 (3d Cir. 1994)).
2. Analysis
Applying these considerations to the facts of this case, the Court will deny Defendant's motion. First, the Court does not find that Plaintiff bears "personal responsibility" for the delay herein. Poulis, 747 F.2d at 868 (emphasis omitted). The facts underlying Plaintiff's claims arose while Plaintiff was incarcerated, and, in order to be able to timely pursue these claims, Plaintiff had no choice but to file his Complaint during the time of his incarceration. The parties litigated the case extensively through discovery and substantial motion practice, and it was only at the point where "the case [was] essentially ready for trial but . . . [could not] be prosecuted at trial by plaintiff at this time due to plaintiff's incarceration," (Docket Item 119 at 1), that the proceedings had to be stayed. Defendant has identified no litigation conduct on Plaintiff's part that has contributed to the delay herein. The Court accordingly finds that considerations of Plaintiff's "personal responsibility" do not weigh in favor of dismissal. Poulis, 747 F.2d at 868 (emphasis omitted).
The second Poulis factor -- "the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery," id. (emphasis omitted) -- likewise does not indicate that dismissal is appropriate. Defendant Hallett argues in his brief that he believed that Plaintiff's case had been dismissed with prejudice, not stayed and administratively terminated, and states that he has destroyed or otherwise disposed of the records that would assist in his defense of the case because "applicable law does not require an attorney in New Jersey to maintain files and records for that number of years." (Def.'s Br. at 5.) The 1999 Order for administrative termination was clear in its terms: the case was "temporarily stayed," and it would be "administratively terminated upon the docket," and it could be reopened by any party "including upon plaintiff's release from incarceration." As the Court's November 7, 2008 Order reopening this Docket made clear, "[t]he Order of December 30, 1999 anticipated that a period of years might well pass before the docket could be reopened." (Docket Item 124 at 4.) Put simply, the prejudice Defendant complains of as a result of the lost documentary evidence is largely traceable to his, or his attorney's, misreading of the clear terms of the Order for Administrative Termination. Because such prejudice was not "caused by the failure [of Plaintiff] to meet scheduling orders and respond to discovery," Poulis, 747 F.2d at 868 (emphasis omitted), the Court does not find that this second factor weighs in favor of dismissal.*fn2 See Briscoe, 538 F.3d at 260 (where the alleged prejudice is traceable to the defendant's own conduct, as opposed to the plaintiff's, sanctions are inappropriate).
Third, Defendant has made no suggestion that Plaintiff has "a history of dilatoriness." Poulis, 747 F.2d at 868 (emphasis omitted). "Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders." Briscoe, 538 F.3d at 260 (citation omitted). "Furthermore, [the Court] must evaluate a party's problematic acts . . . in light of its behavior over the life of the case." Id. at 261 (internal quotations and citations omitted). As the preceding summary of this action makes clear, Plaintiff litigated his claims up until the point where it could proceed no further on account of his incarceration, and throughout this "life of the case," Defendant made no suggestion of dilatory conduct on Plaintiff's part. Id. There is no history of dilatoriness in this case.
Nor is there any indication that the period during which this case was stayed is attributable to willfulness or bad faith on Plaintiff's part. See Poulis, 747 F.2d at 868. As this Court has explained:
The Third Circuit has made clear that in the context of discovery sanctions, willfulness and bad faith "involve[ ] intentional or self-serving behavior." [Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 875 (3d Cir. 1994)]. By contrast, [a party's] "negligent behavior" or "failure to move with . . . dispatch" -- even if "inexcusable" -- will not suffice to establish willfulness or bad faith. Id. (citing Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982)). "In the jurisprudence of dismissal, willfulness or bad faith is almost always required in order for dismissal to be within the proper scope of the court's discretion." Estate of Spear v. C.I.R., 41 F.3d 103, 111 (3d Cir. 1994).
Bowers, 564 F. Supp. 2d at 340 (emphasis added). There is no suggestion that Plaintiff delayed prosecuting this case through "intentional or self-serving behavior," id. (citation omitted) -- rather, as the Court explained in its Order for Administrative Termination, the stay was called for by the circumstance of Plaintiff's incarceration, and was not procured by Plaintiff as a self-serving or tactical maneuver. In the absence of willful conduct, dismissal is not appropriate. Id.
In recognition of the fact that "[d]ismissal must be a sanction of last, not first, resort," Poulis calls upon the Court to evaluate the appropriateness of sanctions short of dismissal. Poulis, 747 F.2d at 868-69. In the context of sanctions, it bears emphasis that "the severity of the prejudice caused by the violation should be proportional to the sanction imposed in an effort to cure that prejudice." Bowers, 564 F. Supp. 2d at 335 (emphasis added). In this case, as the Court has explained, Defendant has failed to identify prejudice attributable to bad faith litigation misconduct on Plaintiff's part. That is, although the length of the stay in the proceedings herein was inconvenient for all parties, the Court finds that it was Defendant's misunderstanding of the terms of the stay, and not any delinquency or willful misconduct attributable to Plaintiff, that led Defendant to dispose of documents related to this case and caused the prejudice of which Defendant now complains.*fn3 The fifth Poulis factor thus does not weigh in favor of dismissal, or the imposition of any alternative sanction.
The Court must finally consider the meritoriousness of Plaintiff's claims. Poulis, 747 F.2d at 868. "A claim, or defense, will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense." Id. at 869-70. As this Court has previously recognized, "in light of the fact that those of Plaintiff's claims that remain in the case have survived summary judgment motions in the past, the claims may be considered sufficiently arguable under Poulis for present purposes."*fn4 Bowers, 564 F. Supp. 2d at 344; see also Poulis, 747 F.2d at 869-70 (standard for "meritoriousness" in the sanctions context is lower than summary judgment standard).
As the preceding discussion makes clear, each of the Poulis factors weighs against the dismissal of Plaintiff's claims against Defendant Hallett. For the reasons explained above, Defendant's Rule 41(b) motion will be denied.
B. Remaining Considerations
The Court will not dwell long on the remaining issues raised in Defendant's motion, which it finds unpersuasive. First, Defendant suggests that the Court should dismiss Plaintiff's claims against him pursuant to the equitable doctrine of laches. "Laches has been found where an inexcusable and unexplainable delay in enforcing a known right prejudiced the other party because of such delay." In re Kietur, 332 N.J. Super. 18, 28 (N.J. App. Div. 2000) (emphasis added). As the New Jersey Supreme Court has held "[l]aches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned." Knorr v. Smeal, 178 N.J. 169, 181 (2003) (emphasis added).
The Court does not find that the application of the laches doctrine is called for here. First, the Court does not agree with Defendant that the delay in the prosecution of this case was "inexcusable and unexplainable." Kietur, 332 N.J. Super. at 28. To the contrary, the fact of the stay of the proceedings herein is explained by the Court's Order for Administrative Termination, which, as this Court has explained, made clear that "it was within the contemplation of the Court and, presumably, all parties that the case would be frozen in place during Mr. Wilkerson's incarceration." (Docket Item 124 at 2.) Far from being unexplainable, the delay in the proceedings herein was expressly provided for in the Court's Order. (Id.)
Moreover, the Court cannot conclude that "the delaying party had sufficient opportunity to assert the right in the proper forum . . ." Knorr, 178 N.J. at 181. To the contrary, the administrative termination of the proceedings herein was premised upon the very fact that the case could not proceed to trial during Plaintiff's incarceration, (Docket Item 119 at 1), and Plaintiff hardly can be said to have had the opportunity to further litigate his claims in the face of the Court's Order to the contrary.
Moreover, the underlying stay of the case occurred only after there had been ample discovery and motion practice, all while events were fresh, with only trial preparation remaining. There is no reason to believe that relevant evidence could not have been gathered and analyzed during the three years in which this case was open and active before the December 30, 1999 Order.
Finally, the Court does find that Defendant "acted in good faith believing that the right had been abandoned." Knorr, 178 N.J. at 181. In his motion, Defendant states, without elaboration, that he "actually thought the case had been dismissed rather than administratively terminated . . . Defendant's belief was reasonable, and his actions [in disposing of his files] were justified." (Def.'s Br. at 4.) The Court cannot agree with Defendant that his "belief" that the matter had been dismissed with prejudice was reasonable. Such a belief finds no support in the language of the Order for Administrative Termination, which provides in relevant part that the case would be "temporarily stayed and administratively terminated upon the docket of the Court . . . . without prejudice to the right of any party to reopen for further proceedings consistent with law, including upon plaintiff's release from incarceration[.]" (Docket Item 119 at 1-2) (emphasis added). While Defendant's (or his attorney's) misconstruction of the Court's Order is unfortunate, the plain language of the Order makes clear that such a misconstruction was not reasonable or based upon a "good faith" understanding of the Order. Knorr, 178 N.J. at 181. In short, the Court concludes that the doctrine of laches is not applicable to the circumstances presented here.
Finally, Defendant's suggestion that spoliation sanctions should be imposed against Plaintiff on account of Defendant's destruction of evidence is utterly untenable. "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Mosaid Tech. Inc. v. Samsung Elec. Co., 348 F. Supp. 2d 332, 335 (D.N.J. 2004) (emphasis added); see also Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994) (spoliation sanctions account for "the degree of fault of the party who altered or destroyed the evidence" and "the degree of prejudice suffered by the opposing party"). Plaintiff did not destroy any evidence in this case. Defendant's destruction of his own evidence based upon his misunderstanding of the Order for Administrative Termination, although unfortunate, cannot justify the imposition of spoliation sanctions against Plaintiff.
For the reasons set forth above, the Court will deny Defendant's motion to dismiss. The accompanying Order is entered.
JEROME B. SIMANDLE United States District Judge
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September 13, 2011
MELCHOR R. JAYME, PLAINTIFF,v.UNITED STATES OF AMERICA, DEPARTMENT OF VETERANS ADMINISTRATION, ET AL.,DEFENDANTS.
This matter has come before the Court on Defendants the United States Department of Veterans Affairs*fn1 (VA), Eric Shinseki, and Kenneth McQuown's Motion to Dismiss, or in the alternative, for Summary Judgment [docket # 25]. Plaintiff Melchor Jayme has opposed the motion [30]. The Court has decided the matter after considering the parties' submissions, without holding oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendants' Motion is granted.
In 2009, Congress created the Filipino Veterans Equity Compensation Fund (FVEC) as part of the American Recovery and Reinvestment Act of 2009. Pub. L. No. 111-5, Title X, § 1002, 123 Stat. 115, 200-02 (to be codified at 38 U.S.C. § 107). The FVEC entitles eligible Filipino veterans of World War II to a one-time payment of $15,000 for U.S. citizens and $9,000 for non-citizens. Id.
Plaintiff Melchor R. Jayme is a Filipino-American who served in the Commonwealth Army of the Philippines and the U.S. Army during World War II. (Am. Compl. 8--9) [21]. On May 13, 2009, Plaintiff filed a claim seeking compensation under the FVEC. (Id. at 2--3). His claim was denied because the VA had previously determined, in a written decision issued May 19, 1953, that he had forfeited all rights to benefits provided by the VA by assisting the enemy Japanese during the war. (Id.) Plaintiff then sent a letter to VA Director Eric Shinseki requesting that Shinseki void the May 1953 decision and an alleged July 1949 decision.*fn2
Plaintiff filed this suit on June 25, 2010. After the Court granted a motion to dismiss, Plaintiff filed an Amended Complaint on April 19, 2011 [21]. The Amended Complaint contains four counts. The first count seeks for the Court to overturn the May 1953 VA decision forfeiting his rights and benefits and award him $15,000. (Am. Compl. 16.) The second count seeks to overturn the alleged July 1949 decision. (Id. at 18.) The third count challenges the VA's decision to designate Plaintiff "Honorable Discharge" rather than "Disability Discharge" and seeks an award of all the rights and benefits owed to disability-discharged veterans. (Id. at 20.) And the forth count seeks to have two laws declared unconstitutional. (Id. at 24.)
Defendants filed the instant motion to dismiss, or in the alternative, for summary judgment, arguing that 38 U.S.C. § 51 precludes judicial review of veterans' benefits decisions, and thus, the Court lacks subject matter jurisdiction and Plaintiff has failed to state a claim for relief.
A.Legal Standard
If a defendant challenges the court's jurisdiction under Fed. R. Civ. P. 12(b)(1), the plaintiff bears the burden of proving subject matter jurisdiction, but the burden is light: the court should only dismiss for lack of jurisdiction where the claim "is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Growth Horizons, Inc., v. Del. Cty., Pa., 983 F.2d 1277, 1280-- 81 (3d Cir. 1993) (internal quotations omitted).
In contrast, a motion under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). The defendant bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). When considering a 12(b)(6) motion, a district court must accept as true all of a plaintiff's well-pleaded factual allegations and construe the complaint in the light most favorable to plaintiff, but may disregard any legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded facts have been identified, a court must determine whether the "facts are sufficient to show that plaintiff has a 'plausible claim for relief.'" Id. (quoting Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009)).
Although Plaintiff's Amended Complaint lists four separate causes of action, each claim essentially seeks the same result: that this Court review and reverse the decisions of the Secretary of Veterans Affairs and award Plaintiff the veterans' rights and benefits to which he believes he is entitled. By law, however, this Court does not have jurisdiction to review decisions of the VA with respect to veterans' benefits. Plaintiff's claims must therefore be dismissed.
The Veterans Judicial Review Act ("VJRA"), 38 U.S.C. § 101, et seq., sets out a limited procedure for judicial review of decisions made by the VA. First, the veteran must seek review within the agency by filing a notice of disagreement with the Board of Veterans Appeals. See 38 U.S.C. § 7104(a). An appeal from the decision of the Board can only be taken to the Court of Appeals for Veterans Claims ("CAVC"), which has exclusive jurisdiction over appeals from the Board. See 38 U.S.C. §§ 7252(a) and 7266(a). Finally, jurisdiction over appeals from the CAVC lies in the United States Court of Appeals for the Federal Circuit. See 38 U.S.C. § 7292(a). Subject to exceptions which are not relevant here, Congress expressly prohibited review of the Secretary's benefits decisions by district courts in 38 U.S.C. § 511, which states:
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
38 U.S.C. § 511(a) (emphasis added);*fn3 Dambach v. United States, 211 F. App'x 105, 108 (3d Cir. 2006).
The first two counts of Plaintiff's Amended Complaint contest the decisions made by the VA forfeiting Plaintiff's benefits and seek reinstatement of those benefits. The third count asks the Court to determine that Plaintiff is a disability-discharged veteran and award him benefits accordingly. Because district courts do not have jurisdiction over challenges to the validity of decisions denying veterans' benefits, we must dismiss these claims.
Plaintiff's fourth count challenges the constitutionality of two congressional laws, which the VA relied upon in the 1953 decision forfeiting Plaintiff's rights and benefits. Although district courts do have jurisdiction to hear facial constitutional challenges to veterans' benefits laws, see Johnson v. Robison, 415 U.S. 361, 376--77 (1974); Hall v. U.S. Dep't Veterans Affairs, 85 F.3d 532, 534 (11th Cir. 1996), a plaintiff cannot simply characterize his challenge to a benefits determination as a constitutional claim in order to overcome the jurisdictional bar of 38 U.S.C. § 511, Johnson v. Dep't of Veterans Affairs, 351 F. App'x 288, 290 (10th Cir. 2009) (rejecting claims, which "despite being couched as constitutional challenges to statutes and a regulation," instead "function[ed] only as a means to contest the adverse benefits decision"). The two laws Plaintiff challenges mandate forfeiture of benefits for any claimant who makes a false representation concerning any claims for benefits, Pub. L. No. 73-2, § 15, 48 Stat. 8, 11 (1933), and for any claimant who is guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States, Pub. L. No. 78-144, § 4, 57 Stat. 554, 555 (1943). Plaintiff has not made a colorable showing why these laws would be unconstitutional. Instead, Plaintiff's purported constitutional challenge is really just a claim that the VA should not have forfeited his benefits on the basis of these laws. Accordingly, pursuant to 38 U.S.C. § 511, his claim cannot be pursued in the district courts. Therefore, we dismiss this count as well.
If Plaintiff wishes to pursue these claims further, he must use the statutorily-mandated procedures: review by the Board of Veterans Appeals, with an appeal lying in the Court of Appeals for Veterans Claims and then in the United States Court of Appeals for the Federal Circuit.
For the reasons stated above, the Defendants' Motion will be granted and all claims against Defendants will be dismissed. An appropriate order will follow.
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December 23, 2008
SUSAN CAMPBELL, RESPONDENT,v.COUNTY OF SUFFOLK, ET AL., APPELLANTS (AND A THIRD-PARTY ACTION).
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated November 30, 2007, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PETER B. SKELOS, J.P., ROBERT A. LIFSON, FRED T. SANTUCCI and RUTH C. BALKIN, JJ.
(Index No. 4277-05)
ORDERED that the order is affirmed insofar as appealed from, with costs.
On October 2, 2004, the plaintiff was a passenger in a motor vehicle being operated by Charles Merritt, the third party defendant, when it was involved in an accident with a bus owned by the defendant County of Suffolk and operated by the defendant Peggy Costello. As a result of the accident, the plaintiff sustained injuries and commenced this lawsuit against the County and Costello. In support of that branch of her motion which was for summary judgment on the issue of liability, the plaintiff submitted evidence which established that the Merritt vehicle was traveling in the northbound roadway of County Road 51 in Suffolk County when the County bus, which had been traveling in a southbound direction, crossed over the roadway's dividing median and struck the Merritt vehicle head on. By such evidence, the plaintiff demonstrated her entitlement to judgment as a matter of law (see Vehicle and Traffic Law § 1126[a]; Scott v Kass, 48 AD3d 785; Hazelton v D.A. Lajeunesse Bldg. & Remodeling, Inc., 38 AD3d 1071; Marsicano v Dealer Storage Corp., 8 AD3d 451).
In opposition thereto, the County and Costello failed to raise a triable issue of fact. At her deposition, Costello admitted that just before the accident occurred, she "cut" the bus steering wheel "to the left very hard" to avoid a nearby truck which was "very close . . . in my lane." However, Costello also stated that she observed the "whole truck" in her side view mirror, suggesting that the truck was not dangerously close, and that only a slight move to the left by the bus would have been warranted under the circumstances. Nor is there any allegation that the truck ever struck the bus. Moreover, later in her deposition, Costello stated that she lost control of the bus because her "air ride" driver's seat was "bouncing."
Accordingly, the County and Costello failed to raise an issue of fact as to whether Costello was confronted with an emergency "not of her own making" (Makagon v Toyota Motor Credit Corp., 23 AD3d 443, 444). Thus, the plaintiff was entitled to summary judgment on the issue of liability (see Alvarez v Prospect Hosp., 68 NY2d 320).
We have not considered the claim raised by the plaintiff in her respondent's brief that the Supreme Court should have also granted that branch of her motion which was for summary judgment on the issue of serious injury because the plaintiff did not cross-appeal from the order (see Hecht v City of New York, 60 NY2d 57, 63).
SKELOS, J.P., LIFSON, SANTUCCI and BALKIN, JJ., concur.
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