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filed: January 18, 1990; As Corrected.
UNITED STATES OF AMERICA, APPELLEEv.RICHARD CIANSCEWSKI, APPELLANT
On Appeal From the United States District Court For the Eastern District of Pennsylvania; D.C. Crim. No. 88-277-01.
Becker, Scirica, and Nygaard, Circuit Judges.
Opinion OF THE COURT
BECKER, Circuit Judge.
This appeal presents several questions arising out of the new federal sentencing guidelines, the most important of which involves the applicability of the criminal livelihood guideline in effect before November 1, 1989 to someone with a high percentage, but low amount, of income that is illicit. We conclude that the guideline is inapplicable to defendants whose yearly profit from crime is less than 2000 times the hourly minimum wage.
In this case, the district court's application of the criminal livelihood guideline enhanced the sentence appellant Richard Cianscewski otherwise would have received under the fraud and deceit guideline. We conclude that the district court correctly calculated the appropriate sentencing range under the fraud and deceit guideline, but misapplied the criminal livelihood enhancement. Accordingly, we will vacate and remand for resentencing.
I. Facts and Procedural History
Richard Cianscewski appeals his sentence of 41 months' imprisonment following conviction of one count of conspiracy,*fn1 three counts of possessing stolen mail,*fn2 and three counts of selling stolen United States treasury checks.*fn3 Cianscewski and his common-law wife were indicted for possessing and selling stolen treasury checks on four separate occasions. She was charged with selling checks worth $3126.45 for $1040 on March 3, 1988. He was charged with selling checks worth $2128.91 for $710 on March 22, 1988; checks worth $2309 for $780 on April 1, 1988; and checks worth $2066.82 for $680 on April 11, 1988.
On each date, Cianscewski or his wife met an undercover government agent in the same McDonald's parking lot to complete the respective sales, which involved a total of twelve checks, seven not counting the checks that she sold on March 3. The Cianscewskis received the checks from a former thief turned government informant. At their joint trial, they each advanced an entrapment defense. A jury acquitted her of the March 3 charges, convicted him of all substantive charges, and convicted both of conspiracy. The face value of all the checks at issue is $9631.18, for which the Cianscewskis received $3210. Excluding the checks Cianscewski's wife sold on March 3, for which no conviction was obtained, the total face value of the remaining checks is $6504.73, for which Cianscewski received $2170.
Cianscewski's offense level was calculated from section 2F1.1 of the Guidelines, which governs fraud and deceit.*fn4 That guideline provides for a base offense level of six, to be increased by two for losses valued between $5000 and $10,000. In calculating the total amount of loss caused by Cianscewski's criminal activity, the district court included the checks sold by Cianscewski's wife on March 3 and valued all the checks at their face amount. As a result, it determined the total amount of loss to be $9631.18 -- near the top of the plus-two range for amount of loss. The district court increased Cianscewski's offense level by two more points because his offenses involved more than minimal planning, see Guidelines § 2F1.1(b) (2) (A), and denied him a two-point reduction for acceptance of responsibility, see id. § 3E1.1. These determinations would have placed Cianscewski's offense level at ten; however, the district court determined that the criminal livelihood provision, which prescribes an offense level of not less than 13, see id. § 4B1.3, was applicable.
Cianscewski unquestionably has a Category VI criminal history, the highest that the guidelines employ.*fn5 A level 13 offense committed by a Category VI criminal yields a sentencing range of 33 to 41 months, see Guidelines § 5A, and the district court imposed a 41-month sentence.
On appeal, Cianscewski challenges (1) the applicability of the criminal livelihood provision; (2) the district court's method for calculating amount of loss; (3) the finding of more than minimal planning; and (4) the rejection of acceptance of responsibility. Each of these claims involves an assertedly incorrect application of the guidelines; thus, we have appellate jurisdiction by virtue of 18 U.S.C. § 3742(a)(2).
II. Criminal Livelihood
The criminal livelihood provision applicable at the time of Cianscewski's sentencing provided:
If the defendant committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income, his offense level shall be not less than 13, unless § 3E1.1 (Acceptance of Responsibility) applies, in which event his offense level shall be not less than 11.
Guidelines § 4B1.3 (Oct. 1988 ed.).*fn6 Read literally, the provision's use of the word "portion," as opposed to simply "amount," seems to suggest that the guideline is applicable to Cianscewski, who, during the period of his present offenses, derived a "substantial portion" of his income (close to 100%) from criminal conduct.*fn7 Cianscewski, however, argues that the criminal livelihood provision was not intended to cover crimes that yield only insubstantial profits. In effect, he asks us to infer a minimum illicit profit requirement -- measured in absolute amount -- below which the provision is inapplicable, regardless of how high a "portion" of one's income is illicit. Despite the apparently plain meaning of the term "portion," we conclude that there are at least five reasons for doing so.
First, the genealogy of the criminal livelihood provision suggests such an implied limitation. The criminal livelihood provision implements 28 U.S.C. § 994(i)(2),*fn8 and the legislative history of section 994(i) makes clear that Congress derived that provision from the old special offender statutes,*fn9 which had prescribed enhanced punishment for any defendant whose "pattern" of criminal activity "constituted a substantial source of his income."*fn10 The special offender statutes defined "substantial source of income" in part as "a source of income which for any period of one year or more exceeds [2000 times the hourly] minimum wage."*fn11 To be sure, section 994(i) and the criminal livelihood guideline speak of substantial "portion" where the special offender statutes spoke of substantial "source"; nonetheless, Congress indicated that that guideline should "embody[] the same considerations which are contained in the . . . special offender statutes." S.Rep. No. 225, 98th Cong., 2d Sess. 120, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3303.
Second, the application note to the criminal livelihood guideline, which states that "[this] guideline is not intended to apply to minor offenses," suggests an implicit absolute threshold requirement. See Guidelines § 4B1.3 application note 1 (Oct. 1988 ed.).
Third, a literal reading of the word "portion" as used in section 994(i) and the criminal livelihood guideline is difficult to reconcile with 28 U.S.C. § 994(d), which requires that the guidelines be "entirely neutral as to the . . . socioeconomic status of the offenders." To the extent that "portion" means "portion," as opposed to "amount," a theft of a given sum of money would qualify its perpetrator for potentially harsher treatment under the criminal livelihood guideline if and only if he earned a sufficiently small amount of legitimate income during the relevant period that his "portion" of illegitimate income was correspondingly large. Reading a minimum absolute threshold into the criminal livelihood guideline does not eliminate the apparent tension between sections 994(i) and 994(d), but does reduce it.*fn12
Fourth, the Sentencing Commission has since amended the criminal livelihood guideline, effective November 1, 1989. The amendment replaces the phrase "from which he derived a substantial portion of his income" with the phrase "engaged in as a livelihood" and adds the following application note:
"Engaged in as a livelihood" means that (1) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2,000 times the then existing hourly minimum wage under federal law; and (2) the totality of circumstances shows that such criminal conduct was the defendant's primary occupation in that twelve-month period.
See Guidelines § 4B1.3 (Nov. 1989 ed.). Of course this amendment was not yet applicable at the time of Cianscewski's sentencing. Nonetheless, to the extent that the amendment resurrects the minimum threshold requirement from the old special offender statutes, it can fairly be read to clarify, rather than alter, the standard in the old guideline. Therefore, "we may give it substantial weight in determining the meaning of the existing guideline." United States v. Ofchinick, 877 F.2d 251, 257 n. 9 (1989).*fn13
Finally, every court to have considered the issue has concluded that the old criminal livelihood provision, despite its vague "substantial portion" language, does in fact contain a minimum absolute threshold. See United States v. Luster, 889 F.2d 1523, 1529 (6th Cir. 1989); United States v. Nolder, 887 F.2d 140, 142 (8th Cir. 1989); United States v. Rivera, 694 F. Supp. 1105, 1106-08 (S.D.N.Y. 1988); United States v. Kerr, 686 F. Supp. 1174, 1177-78 (W.D.Pa. 1988).*fn14
For all of these reasons, we conclude that the version of the criminal livelihood guideline in effect on the date Cianscewski was sentenced is inapplicable to someone whose "income" from illicit activity during any twelve-month period is below 2000 times the hourly minimum wage, i.e. $6700.*fn15 The most Cianscewski profited from his present offenses is $3210. Because that amount falls well below the minimum threshold we have imported from the old special offender statutes and the new guideline, the old guideline may not be applied to Cianscewski solely on the basis of his present offenses.*fn16
The criminal livelihood guideline might, in theory, still be applicable to Cianscewski if (1) his present and some of his past offenses constituted a single "pattern of criminal conduct"; (2) those past offenses netted Cianscewski over $6700 in illicit profit during some past twelve-month period; and, perhaps, (3) either (A) that profit amounted to more than 50% of Cianscewski's adjusted gross income during that period (assuming that the special offender standard governs) or (B) the criminal conduct was Cianscewski's primary occupation during that period (assuming that the new guideline standard governs). It is unclear whether the criminal livelihood guideline was (incorrectly) applied on the basis of Cianscewski's present offenses only or (arguably correctly) applied on the basis of his earlier earlier offenses as well. The presentence report contains language susceptible of either interpretation:
Mr. Cinascewski [sic] has a criminal record which spans 24 years . . . . Aside from substantial time spent in prison (1976 to 1980 and 1984, through 1987), the defendant has been sporadically employed as a seasonal roofer. It can be inferred from the above information that most of the defendant's income and livelihood have been derived from criminal acts. The defendant and Joanne Buck earned $3,210 from the sale of stolen government checks, which comprises the instant offense. The amount of money is considered substantial in view of the defendant's arrest history, periods of incarceration, limited work history, and reported economic situation.
Presentence Report para. 50.*fn17 The record indicates that Cianscewski has had only "limited work history," id. paras. 60, 67, but contains insufficient evidence to support application of the criminal livelihood guideline on the basis of Cianscewski's past offenses, even under the preponderance standard of proof that applies to factual determinations made during sentencing, see United States v. McDowell, 888 F.2d 285, 290-91 (3d Cir. 1989). Had the government pressed this alternative basis for applying the criminal livelihood provision, a remand for further fact-finding might have been appropriate. Instead, however, when asked by this court to comment on the effect of the proposed amendment to section 4B1.3, the government conceded that "the criminal livelihood provision is not applicable to the facts of this case." Appellee's Letter Br. at 3.
Because of this concession, we conclude that Cianscewski must be resentenced under the fraud and deceit guideline, section 2F1.1, without the criminal livelihood enhancement. The district court has already calculated the relevant offense level under the fraud and deceit guideline, however, so we now address Cianscewski's objections to that determination.
III. Amount of Loss
Cianscewski raises three different grounds for challenging the district court's calculation of amount of loss. First, he contends that the district court erred by applying the amount of loss schedule in the first place. He argues that the schedule is inconsistent with section 994(d), because "those at the higher socioeconomic levels, capable of committing larger and more sophisticated thefts and frauds, can steal significantly larger sums of money without enduring an increase in offense level and with it an increase in punishment." Appellant's Br. at 13-14. We find this contention to be patently without merit. The amount of loss schedule is entirely "neutral as to the . . . socioeconomic status" of various offenders, 28 U.S.C. § 994(d): it treats all thieves who steal a given amount the same, regardless of their wealth or income. Ensuring socioeconomic neutrality does not imply, as Cianscewski would have it, that the culpability of stealing must be deemed a linear (as opposed to an increasing, but concave down) function of the amount stolen.
Second, Cianscewski contends that the district court should have valued the stolen checks at the amount he received or them on resale, not at their face value. We disagree. Amount of loss is determined according to the following principles:
"Loss" means the value of the property taken, damaged, or destroyed. Ordinarily, when property is taken or destroyed the loss is the fair market value of the particular property at issue. Where the market value is difficult to ascertain or inadequate to measure harm to the victim, the court may measure loss in some other way, such as reasonable replacement cost to the victim.
Guidelines § 2B1.1 application note 2 (Oct. 1988 ed.). When a check is stolen, the cost to the party who ultimately bears the loss is obviously the face value of the check. Thus, when a thief sells his stolen checks at a discount, the "market value" of the stolen checks does not adequately measure the harm of his actions on the victim of the theft. Under such circumstances, the last sentence quoted above indicates that a court does not err by valuing losses at replacement cost to the victim -- in this case the face value of the stolen checks.*fn18
Third, Cianscewski contends that the district court erred in considering the checks sold by his wife on March 3, for which she was acquitted and he was not charged. The standard of relevant conduct in determining the appropriate guideline ranges plainly allows the sentencing court to consider previously unadjudicated conduct.*fn19 For Cianscewski's offenses, the standard of relevant conduct includes "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Guidelines § 181.3(a)(2).*fn20 Cianscewski was obviously involved in an ongoing course of conduct to acquire and sell stolen treasury checks, and the district court found that he had been involved in his wife's March 3 sale of stolen checks.*fn21 That finding, which is not clearly erroneous, is sufficient to hold Cianscewski responsible for the March 3 checks. See Guidelines § 1B1.3 application note 2 ("'Such acts and omissions,' as used in subsection (a)(2), refers to acts and omissions . . . aided and abetted by the defendant . . . .").
Cianscewski, however, argues that the March 3 checks cannot be considered because a jury acquitted his wife of all criminal charges relating to those checks. That the Cianscewskis knowingly possessed and sold stolen checks on March 3 is undisputed. Her acquittal establishes only that the jury accepted her entrapment defense. "[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988). In other words, in order to excuse Mrs. Cianscewski from responsibility for activity that would otherwise be criminal, the jury had to find that she was not predisposed to possessing and selling stolen treasury checks. Such a finding in no way precluded the district court from finding that he was so predisposed, and therefore not excused from otherwise criminal activity. Indeed, the jury's rejection of Cianscewski's entrapment defense -- to say nothing of his past record of no fewer than seventeen prior adult criminal convictions -- strongly suggests otherwise. The district court did not err in considering the March 3 checks for purposes of calculating amount of loss*fn22
IV. More than Minimal Planning
Cianscewski contends that the district court erred by adding two points to his offense level under the fraud and deceit guideline for "more than minimal planning." See Guidelines § 2F1.1(b)(2)(A).
As a threshold matter, we must determine an appropriate standard of review of a district court's decision whether or not to apply the upward adjustment for more than minimal planning. An analysis of standards of review in guideline sentencing determinations must begin with 18 U.S.C. § 3742(e), which requires the courts of appeals to give "due deference to the district court's application of the guidelines to the facts." The legislative history explains that the meaning of this "due deference" standard "[depends] upon the relationship of the facts found to the guideline standard being applied. If the particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test." 134 Cong.Rec. H11257 (daily ed. Oct. 21, 1988) (statement of Rep. Conyers).
We conclude that a determination whether the commission of some particular offense involved more than minimal planning is essentially factual, and therefore subject only to clearly erroneous review. We see little difference between this kind of inquiry and, for example, one into the role a defendant played in committing a particular offense, which we have held to be factual.*fn23 Moreover, we note that two other circuits have applied only deferential review to "more than minimal planning" determinations.*fn24 Finally, we believe that characterizing this determination as factual is consistent with the general approach worked out by the Supreme Court to determine appropriate standards of review of mixed questions of law and fact: the "more than minimal planning" determination is "'not amenable to regulations by rule because [the determination in each case] [involves] multifarious, fleeting, special, narrow facts that utterly resist generalization.'" Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 2548, 101 L. Ed. 2d 490 (1988) (citation omitted). Thus, even though the determination involves an "ultimate fact" in the sense that it automatically triggers a particular legal consequence (in this case a two-step increase in offense level),*fn25 "as a matter of the sound administration of justice, "*fn26 it is better left to the district court. See Pierce, 108 S. Ct. at 2548-49.
The term "more than minimal planning" is defined, in relevant part, as follows:
"More than minimal planning" means more planning than is typical for commission of the offense in a simple form. More than minimal planning also exists if significant affirmative steps were taken to conceal the offense.
"More than minimal planning" is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses.
Guidelines § 1B1.1 application note 1(f).
In this case, not even considering the checks sold by his wife, Cianscewski received seven stolen checks from a government informant or from his wife and sold them to undercover agents on three separate occasions over a three-week period. On each occasion, Cianscewski went to the same prearranged location, entered the vehicle of his buyer, and completed the illicit transaction. On at least one occasion, Cianscewski himself (not his wife) arranged the rendezvous. Under the definition of "more than minimal planning" quoted above, the district court's determination that Cianscewski's offenses involved "more than minimal planning" is not clearly erroneous.
V. Acceptance of Responsibility
The district court denied Cianscewski a two-level reduction for acceptance of responsibility. That adjustment is available "if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Guidelines § 3E1.1(a). We reverse a district court's determination whether or not to grant this reduction only if it is clearly erroneous. See United States v. Ortiz, 878 F.2d 125, 128 (3d Cir. 1989). The record reflects that Cianscewski refused to cooperate with the probation officer during the preparation of the presentence report, failed to show up for his original sentencing hearing, and still contends that he was entrapped. Under these circumstances, the district court's conclusion that Cianscewski has not accepted responsibility for his crimes is not clearly erroneous.
VI. Conclusion
Because the district court misapplied the criminal livelihood guideline, Cianscewski must be resentenced. The district court's calculations under the fraud and deceit guideline were correct, however. Thus, the guideline range applicable to Cianscewski is 24 to 30 months (for a level 10 offense committed by a Category VI criminal). The district court has yet to consider the possible appropriateness of departing from this range, a determination it must make in the first instance.
The judgment of sentence will be vacated, and the case remanded for resentencing in accordance with this opinion.
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Whether you are looking for unique gifts, get-togethers with friends, family adventures over the holidays or an evening out, you'll find all these and more at the City of Toronto's Historic Sites.
Christmas Time at Colborne Lodge
Saturday, November 19 to Sunday, January 8
Tuesdays to Sundays: 12 to 4 p.m., December 24 and 31: 12 to 3 p.m., Closed December 25, 26 and January 1
Warm up by the hearth at Colborne Lodge and take in the sights and smells of a Victorian Christmas. Enjoy the natural greenery decorations, toast the season with a glass of hot mulled cider by the wood stove and nibble on special holiday treats. The Lodge is nestled at the south end of High Park. Holiday admission prices apply: Adults $7.08, Seniors/Youths/Children $4.42 (plus tax), Children $4.25 (plus tax).
Scottish Holiday Traditions at Gibson House Museum
November 16 to December 31
Enjoy the simple and elegant traditions of the Scottish holiday season at Gibson House Museum. Learn how the Gibson family celebrated the season in the nineteenth century and sample some tasty treats by the open hearth. See the Victorian-era home decorated in natural greenery and take a guided tour with our knowledgeable staff. Festive Admission: Adults $7.08, Seniors/Youth $4.42, Children $3.76 plus tax.
A Victorian Christmas at Mackenzie House
November 29 to December 31
Tuesday to Friday, 12 to 4 p.m.; Saturday & Sunday, 12 to 5 p.m.
This festive season take a step back in time to Victorian Toronto and experience the magic of a traditional Christmas in an 1859 row-house. Escape from the hustle and bustle while you enjoy a sample of mulled cider and a biscuit in the warmth of the historic kitchen. Discover the story of how families celebrated Christmas in 19th century Toronto as you tour the Mackenzie home which is dressed in greenery for the holidays.
A Roaring Twenties Christmas at Spadina Museum
November 22 to January 8, 2017
Tuesday to Friday: 12 to 4 p.m., Saturday & Sunday: 12 to 5 p.m.
Experience a 1920s Christmas on a guided tour of Spadina. Holly wreaths, garlands of evergreens and mistletoe festoon the house based on the memories of the Austin family grandchildren. In the kitchen visitors will enjoy holiday treats made from original recipes and sip mulled cider. Holiday admission applies.
Christmas in the Valley at Todmorden Mills
December weekends and December 24 to January 8, 2017
12 to 4 p.m. (December 24 & 31: 10 a.m. to 2 p.m.) Closed December 25, 26 and January 1
Experience two different eras of Christmas at Todmorden Mills as we explore the holiday traditions of the 1890s and the 1940s. Tour our two historic houses, decorated for the holidays, sample historic recipes, and create a take-home craft. Adults: $7.08; Youth/Seniors: $4.42; Children: $3.76 (plus tax).
Festive Weekends at Scarborough Museum
Weekends in December, 12 to 4 p.m.
Tis the season for fun at the museum! Celebrate the festive season with treats and crafts for children of all ages. Admission is Pay What You Can.
Gingerbread Make and Bake at Fort York
Extra fun for Kids at Fort York (ages 4 and up)
December 27 to 31, 11 a.m. and 2 p.m.
While you enjoy a tour of Fort York your kids can join the cooks in the Officers' Mess kitchen to create traditional gingerbread cookies. In this hands-on workshop, kids will use period cooking utensils and tools to sift flour, crush cinnamon, cloves or allspice, pound sugar and grate nutmeg and ginger as they prepare an 1800's gingerbread recipe. Samples can be taken home -if they last that long! Workshop is limited to 15 participants. Included with regular admission, sign up in the Museum Store when you arrive.
Kids' Crafts at Mackenzie House
December 27 to December 31
Tuesday to Friday, 12 p.m. to 4 p.m.; Saturday & Sunday: 12 p.m. to 5 p.m.
Bring the family to visit the last home of Toronto's first mayor, William Lyon Mackenzie, then enjoy some kid time printing in the recreated printshop and making a New Year's noisemaker!. Adults: $7.08; Seniors /Youth: $4.42 Children: $3.76 (plus tax)
Christmas Cookie Decorating at Montgomery's Inn
Saturday November 26 and Sunday November 27, 2 to 4 p.m.
Master Baker Monika Paradi will prepare you for Christmas with this hands-on workshop. Kids ages 6 – 12, along with their parents, learn to decorate seasonal cookies like a pro and leave the workshop with a half dozen decorated goodies, recipes and the inspiration to create your own edible Christmas treats! Pre-registration only $25 plus HST.
Gingerbread House Workshop at Montgomery's Inn
Saturday, December 3 and Sunday, December 4, 11 a.m., 1 p.m. or 3 p.m.
Decorate your family's dream house all together. All the supplies you need to create a classic gingerbread house will be provided. $30 per house plus HST, pre-registration only.
Victorian Christmas Ghost Stories at Mackenzie House
Sunday, December 18 at 2:15 and 4:15
Victorians loved their ghost stories - even at Christmas time. Join us and sample a few scary Christmas tales along with some cider warmed on our cook stove. Included with admission to the museum: Adults: $7.08; Seniors /Youth: $4.42 Children: $3.76 (plus tax)
Write a Letter to Santa at Mackenzie House
November 16 to December 24
Children love writing to Santa Claus to tell him about their Christmas wish lists. Select a card that has been printed on our 1845 printing press, and write a personal message. Drop the wish card into our magic post box and it will go to Santa! Included with admission. Adults: $7.08; Seniors /Youth: $4.42 Children: $3.76 (plus tax).
Holiday Baking Bonanza at Scarborough Museum
Sunday, December 4, 1 to 4 p.m.
Kids age 5 to 12bake holiday treats in the woodstove and the hearth. Take home a recipe booklet and goodies to share with the family! Pre-register online at www.toronto.ca/torontofun or call 416-338-4FUN. $25. Course Code: 2875010.
Gingerbread Cookie Decorating at Gibson House Museum
Saturday, December 10, 1 to 4:30 p.m.
Start your adventure by decorating gingerbread cookies baked by museum staff with holiday sweets. Then, take a tour of the museum with our costumed interpreters and learn how the Gibson's would have baked gingerbread over the hearth. Finish your visit by enjoying your gingerbread cookie! Regular admission applies. Cookie decorating is $1 per cookie.
Cookie Creations at Colborne Lodge
Saturday, December 17, 9:30 to 11:30 a.m.
Course Code: 2889795
Children age 8 to 12 will have fun making homemade cookies and discovering Victorian Christmas traditions and games. Participants will each go home with their own tin of gingerbread. Pre-registration and payment required. $22.50 + tax (includes supplies and a dozen cookies to bring home). Pre-register online at toronto.ca/torontofun or call 416-338-4386.
Christmas at Colborne Lodge
Sunday, December 18, 9:30-11:30 a.m.
Course Code: 2889970
Kids age 5 to 7 join in old fashion Christmas fun in the historic home with a morning full of activities, cookie decorating and crafts. Pre-registration and payment required. $17.50 + tax (includes light seasonal refreshments). Pre-register online at toronto.ca/torontofun or call 416-338-4386.
Holiday Camps for Ages 5 to 12 at Scarborough Museum
9 a.m. to 4 p.m. - extended care is available
Make 19th-century toys, cook over the open hearth, play games and enjoy lots of outdoor fun! Pre-register for these camps online at www.toronto.ca/torontofun or call 416-338-4FUN (4386).
December 28 to 30
Course Code: 2875008
$114 per child
AM Extended Care: 8 to 9 a.m. Add $9
Course Code: 2781918
PM Extended Care: 4 to 5 p.m. Add $9
Course Code: 2781919
January 3 to 6
Course Code: 2875009
$152 per child
AM Extended Care: 8 to 9 a.m. Add $12
Course Code: 2875265
PM Extended Care: 4 to 5 p.m. Add $12
Course Code: 2875268
Toussaint: Traditions of the Dark Months at Montgomery's Inn
Sunday, November 20, 6 to 10 p.m.
A bewitching evening of storytelling and music from the Celtic tradition of Breton folklore, where during the "Black Months" of November and December all gathered by the fire to hear the bleak and eerie tales of northern coastal France. Tickets $20 plus tax for adults, $15 including tax for youth, students and seniors. Pre-registration is strongly recommended. Please note: we advise that some of the stories may not be suitable for children under 12 years of age. Details at http://danceweavers.ca/toussaint.html or call 416-578-1031.
Carols in the Tavern at Montgomery's Inn
Saturday, December 3, 7:30 p.m.
Get some Christmas Spirit in the Tavern while you sing some nineteenth century carols and sip a historic drink. $20 plus tax, savoury treats, mulled cider, cash bar for historic drinks. Pre-registration only.
Flashman: A Live 1930s Radio Play at Spadina Museum
Sundays December 4, 11 & 18
Shows at 1 & 3 p.m.
Museum tours: Noon, 2 and 4 p.m.
See a re-created 1930s radio show – commercials included! Enjoy this fast-paced comedy, complete with live music, sound effects and a cast playing multiple roles. During your visit, tour this beautifully restored estate. Kids can try hands-on activities, including cookie decorating in the historic kitchen, and making a secret message decoder – a gimmick used by advertisers in the early days of radio to send encrypted messages to listeners. Adults $12, Seniors/Youth $10 and Children $8 (plus tax). Buy your tickets online.
Desserts by Lamplight at Scarborough Museum
Saturday, December 10, 6:30 to 9 p.m.
A magical evening of lamp-lit rooms, decadent desserts and carolers. Space is limited for this fundraising event - early bookings recommended. Pre-registration only. Call 416-338-8807 or click here to purchase tickets. Ticket price $25 includes tax.
A Christmas Carol by Charles Dickens, presented by John D. Huston at Historic Zion Schoolhouse
December 10, Matinee at 2:30 and Evening at 7:30 p.m.
Written in 1843, a Christmas Carol may be the best loved fictional work in the English language. Few people know that Dickens wrote and performed a thrilling and hilarious solo theatrical version of this famous story for many years, playing all the characters and providing the narration. Now you can experience the laughter, tears and joy of the original with John D. Huston as Charles Dickens in this rare and enchanting holiday must see!
$20 per person plus tax.
Purchase tickets here. Call 416-395-7432 for details.
Jane Austen Christmas Supper by Firelight at Montgomery's Inn
Friday December 16, 4:30 to 6:30 p.m. and 7:30 to 9:30 p.m.
Enjoy the pleasures of the Georgian table during the festive season, supping by candlelight and the comfort of an open fire. There is no more delightful way to savour the traditions of Christmas! Every recipe reconstructed from historical sources, you'll find a blend of the familiar and the intriguingly different. Join us for the rare opportunity to experience a full historical meal within the walls of one of Toronto's best-loved heritage sites. Historical clothing is encouraged, but optional. Pre-registration is required, space is limited. Register at www.JaneAustenDancing.ca or phone (416) 578-1031 for details.
Hogmanay at Mackenzie House
Thursday, December 29, 7 p.m. to 9 p.m.
Enjoy an evening of Scottish music and foods at this traditional celebration of the New Year. The decorated house will be illuminated by gas and candlelight. Musicians Gin Lane will perform. Pre-registration and pre-payment are required. Tickets: $22.50 plus tax. Please call 416-392-6915 for further details.
To the New Year: Hogmanay Dinner at Gibson House Museum
Thursday, December 29, and Friday, December 30, 6 p.m.
Gather at the historic Gibson House for a special evening inspired by the Scottish traditions of Hogmanay. Share a scrumptious dinner with familiar and new friends. Be lulled by the fire and moved by the music. Take an imagined journey through story and drama to a New Year of another time. As the evening closes, come together with staff to welcome our First Footer, celebrate our 2016 season and bring luck and best wishes to Gibson House Museum for 2017. Pre-registration and pre-payment required. Buy your tickets online.
Holiday Greeting Cards Workshop for Families at Todmorden Mills
Saturday, November 26, 1 to 4 p.m.
From pop ups to collage! Learn about the origins of holiday greeting cards while you create a set of personalized cards to send to loved ones. Suitable for children 6 years and up. Pre-registration required Adults: $15; Children: $10 (plus tax).
Christmas Wreath Making Workshop for Adults at Todmorden Mills
Sunday, November 27, 10 a.m. to 12 p.m. Just added!
(1 to 3 pm is Sold Out)
Show your holiday spirit this year by proudly displaying your own handmade wreath on your front door. Drawing inspiration from the past but also adding your own contemporary twist, you will create a decorated wreath from a varied selection of evergreens, natural materials and ribbon. The workshop last two hours and will include hot mulled cider and a holiday treat. Pre-registration required. $30 plus tax.
Christmas Baking Workshop for Adults at Mackenzie House
Saturday, December 10, 10 a.m. to 1 p.m. SOLD OUT!
Come and try your hand at Victorian Christmas baking in our wood stove, learning about the tastes and culinary technology of the 1850's! Pre-registration and pre-payment are required. $20 plus tax. Please call 416 392-6915 for further details.
Holiday Wreath and Centrepiece Making Workshops at Colborne Lodge
Various Dates and Times - See ticket website for details
Start your Christmas preparations by creating your very own Christmas decor using nature's bounty. These 2-hour workshops are a popular pre-Christmas get-together activity for groups of friends and families. Set in picturesque High Park, the Lodge's winter kitchen offers a cozy historic ambience for this seasonal craft. Participants also explore the Howard's beautiful home in all its Christmas glory and enjoy light seasonal refreshments in the drawing room. Tickets on sale now.
Frost Fair at Fort York
Saturday, December 3, 10 a.m. to 5 p.m.
It's time to celebrate Frost Fair at Fort York! Stroll through Canada's largest collection of War of 1812 buildings, where you can shop for unique gifts made by local artisans; including jewelry, heritage inspired reproductions, and holiday greenery. There is much to do for the whole family; including children's drill workshops, dress-up, games and crafts. Visit the Mackenzie House Museum proof press to print your very own Frost Fair souvenir. Enjoy military demonstrations and visit with the Volunteer Historic Cooks in our Officers' Mess Kitchen to sample late 18th and early 19th century recipes. Or, stop by our Heritage Café to buy lunch!
Holiday Farmers' Market & Gift Sale at Montgomery's Inn
Wednesday, December 7, 2 to 7 p.m.
Artists & artisans join our regular farmers' market vendors for a special holiday event. Shop for foodie gifts & seasonal treats in a lovely historic setting, open an hour longer than our regular market. You'll find fresh bread from the Inn's bake oven, preserves, local winter vegetables, sweets, prepared foods, ethically raised meats, cheese, eggs, dried fruit, nuts, honey & wine while enjoying festive seasonal music. Cozy up to a roaring fire while sipping a hot mulled apple cider and kids will enjoy purchasing a gingerbread man from our winter witch! Fundraising fruitcakes, $10 each. Admission is free.
We have Museum Gift Shops!
You don't have to pay admission to visit the museum shops at the City's Historic Sites. It's free to browse our great collections of unique gifts thoughtfully chosen to be sold at the individual sites. Running out of ideas and time? Drop by and see gifts ranging from stocking stuffers to the perfect gift for the person on your list. Reasonably priced. Great selection. Visit


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August 27, 1998
August 27, 1998
Plaintiff Johann Breyer was denaturalized by order of this court in 1993, as a consequence of his service during World War II in the SS Totenkopf (Death's Head) Battalion as an armed guard at the Buchenwald and Auschwitz concentration camps. This court yesterday granted defendant's motion to dismiss plaintiff's petition for a declaratory judgment that he is entitled to derivative United States citizenship. For the reasons set forth below, I will deny plaintiff's motion to amend his petition.
Under Federal Rule of Civil Procedure 15(a), "leave [to amend] shall be freely given when justice so requires." In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997) (citation omitted) (alteration in original). However, denial of an opportunity to amend is commended to the discretion of the district court, and such discretion is not abused if it is justified by grounds such as undue delay, bad faith, dilatory motive, prejudice, or futility. Smith v. National Collegiate Athletic Ass'n, 139 F.3d 180, 190 (3d Cir. 1998) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)). A finding of "dilatory motive" is justified where the plaintiff acts "in an effort to prolong litigation." See Burlington, 114 F.3d at 1434. "Futility" means that the complaint, as amended, would not survive a motion to dismiss for failure to state a claim upon which relief could be granted, based upon the same standard of legal sufficiency as under Rule 12(b)(6).
Smith, 139 F.3d at 190 (citing Burlington, 114 F.3d at 1434).
This opinion assumes familiarity with this court's order granting defendant's motion to dismiss, including the factual background and statutory background of this case, as well as the conclusions of law expressed in that memorandum. I will deny plaintiff's motion to amend because the proposed amendments would be futile,
and due to plaintiff's dilatory motive.
A. Dilatory Motive
The additional allegations in the proposed Second Amended Petition do not appear to reflect new information learned through discovery, and plaintiff does not allege to the contrary. (See Pl.'s Mot. Amend at 3.) The proposed amendments "could have and should have been presented in the earlier amended complaint," and plaintiff offers no reason why they were not. See Scattergood v. Perelman, 945 F.2d 618, 627 (3d Cir. 1991). In parceling out his claims among the original petition filed October 21, 1997, the Amended Petition filed December 15, 1997, and the proposed Second Amended Petition filed April 14, 1998 with the motion to amend, I conclude that plaintiff has acted with dilatory motive, seeking to delay any action that may be taken by the Immigration and Naturalization Service ("INS") based upon the resolution of this suit. See INS v. Rios-Pineda, 471 U.S. 444, 450, 105 S. Ct. 2098, 2102, 85 L. Ed. 2d 452 (1985) (discussing alien's incentive to delay deportation through meritless appeals).
B. Civil Rights Claims
Plaintiff seeks to assert proposed claims under 42 U.S.C. §§ 1983 and 1985(3) against defendant Meissner and proposed additional defendants Janet Reno, U.S. Department of Justice, and various John Doe officials of the Department of Justice. Plaintiff alleges that these defendants conspired to intentionally delay the processing of his application for a certificate of citizenship while the Department of Justice ("DOJ") lobbied Congress for the passage of the Immigration and Nationality Technical Corrections Act of 1994 ("INTCA"), Pub. L. No. 103-416, 108 Stat. 4305 (1994). Even accepting this factual allegation as true for purposes of the motion to amend, the proposed amendments would nevertheless be futile.
Plaintiff's claims under 42 U.S.C. § 1985(3) are without foundation in the facts as alleged. Actions under § 1985(3) for a civil rights conspiracy are "limited to private conspiracies predicated on 'racial, or perhaps otherwise class based, invidiously discriminatory animus.'" Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971)). Protection has been extended under § 1985(3) to women and to the "mentally retarded, as a class." 112 F.3d at 686. Plaintiff has alleged neither that he is a member of any class recognized as subject to the protection of § 1985(3), nor that he has been subjected to discriminatory animus based on membership in such a class.
Plaintiff's claims under 42 U.S.C. § 1983 also cannot withstand a motion to dismiss, because plaintiff has not alleged that any of the proposed defendants acted under color of state law. See Hindes v. Federal Deposit Insurance Corp., 137 F.3d 148, 158 (3d Cir. 1998) (federal agencies and officers are facially exempt from § 1983 liability) (citations omitted). Plaintiff's proposed amendment names only federal officials and federal agencies as defendants, and makes no allegation that they acted under color of any law other than federal immigration law. Therefore, plaintiff fails to state a claim under § 1983 against the federal agencies, which are not deemed to be "persons" under § 1983, or against the individual officers in either their official or individual capacities. See id.
Even if the proposed Second Amended Petition were liberally construed as instead asserting a claim under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), which provides a remedy against federal officials for violations of federal rights, the amendment would nevertheless be futile. To the extent that the proposed claims seek monetary damages against the United States or individual defendants in their official capacities, the claims are barred by the doctrine of sovereign immunity. Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000, 127 L. Ed. 2d 308 (1994). Plaintiff does not allege that the United States has waived its immunity in this case. Furthermore, the Supreme Court has held that a Bivens action may not be brought against a federal agency. Id. at 484-86, 114 S. Ct. at 1005-06.
As to claims against officials in their individual capacities, plaintiff has failed to allege any personal involvement by the individual defendants in the allegedly unconstitutional conduct.
In addition to the significant merits of the individual defendants' asserted defenses, which include absolute and qualified immunity and the applicability of Pennsylvania's two-year statute of limitations, I note that on May 29, 1998, defendant Meissner and Attorney General Reno filed a response opposing plaintiff's motion to amend. This response also encompassed in the alternative a motion to dismiss all claims against Meissner and Reno in their individual capacities, if plaintiff's motion to amend were granted. Local Rule 7.1 provides that the party opposing a motion "shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion and supporting brief. In the absence of a timely response, the motion may be granted as uncontested . . ." U.S.Dist.Ct. Rules E.D. Pa., Civil Rule 7.1(c) (1995). Plaintiff never filed a brief or any other response to the May 29, 1998 motion to dismiss. Therefore, even if I granted plaintiff's motion to amend, I would dismiss as uncontested all claims against Meissner and Reno in their individual capacities.
I conclude that plaintiff has not stated a claim under Bivens upon which relief may be granted against any defendant or proposed defendant in his or her individual capacity, or against INS or the Department of Justice. I further conclude that monetary damages are not available under Bivens against any remaining proposed defendants in their official capacities. Therefore, the only remaining potential claims under Bivens are for equitable relief against individual defendants in their official capacities.
C. Improper Lobbying Activity by DOJ
Plaintiff alleges that the Department of Justice and its Office of Special Investigations ("OSI") improperly lobbied Congress for the provision that became § 101(c)(2) of INTCA, with the intent to specifically target plaintiff. Plaintiff does not allege that DOJ's comments to Congress caused the alleged delay at the INS, but rather that DOJ's comments to Congress injured plaintiff by causing INTCA to be enacted in its current form.
When the executive branch informs Congress of a perceived need for a change in existing law or a proposed law, it serves an important and well-established purpose in the legislative process. "With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process." Keller v. State Bar of California, 496 U.S. 1, 12, 110 S. Ct. 2228, 2235, 110 L. Ed. 2d 1 (1990). Indeed, it is entirely commonplace for the Department of Justice to draft or comment upon proposed legislation before Congress. See, e.g., United States v. Donovan, 429 U.S. 413, 441, 97 S. Ct. 658, 674-75, 50 L. Ed. 2d 652 (1977); Natural Resources Defense Council v. U.S.E.P.A., 703 F.2d 700, 711 (3d Cir. 1983); Jordan v. United States Dep't of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 764 n.37 (D.C. Cir. 1978). Congress is free to accept or reject such external input into the legislative process.
To the extent that plaintiff's argument is based upon legislative motivations, there is no support in the law for the relief plaintiff seeks. It is a long-settled principle that, unless a statute is found to be a bill of attainder or to abridge a substantial constitutional right, the courts "will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383-85, 88 S. Ct. 1673, 1682-83, 20 L. Ed. 2d 672 (1968); Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 224, 69 S. Ct. 550, 552, 93 L. Ed. 632 (1949); Penthouse International, Ltd. v. Meese, 291 U.S. App. D.C. 183, 939 F.2d 1011, 1017 (D.C. Cir. 1991). Because the retroactivity limitation in INTCA is not a bill of attainder, and violates neither equal protection nor due process, plaintiff cannot state a claim for violation of a substantial constitutional right, and the inquiry into legislative motivation is foreclosed.
To the extent that plaintiff's argument is based upon improperly motivated action by DOJ, such a perceived abuse of executive power would raise only substantive due process concerns. Although the purpose of the Due Process Clause is to "prevent government officials from abusing their power, or employing it as an instrument of oppression," the Court has consistently held that substantive due process protects against "only the most egregious official conduct." County of Sacramento v. Lewis, U.S. , , 140 L. Ed. 2d 1043, 118 S. Ct. 1708, 1716 (1998) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 126, 112 S. Ct. 1061, 1069, 117 L. Ed. 2d 261 (1992)) (internal quotation marks and alterations omitted). The Court recently noted that "for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience." Id. at , 118 S. Ct. at 1717 (citing Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952)).
Plaintiff has identified no authority, and this court's research has located none, for the proposition that a duly enacted law may be struck down or equitably rendered unenforceable because of ill-timed or even inaccurate recommendations to Congress by an executive branch department, agency, or employee. I find no provision of law that prevents DOJ or its employees from advancing the agenda of the executive branch by seeking a change in proposed legislation, even if they intend such a change to adversely affect people already engaged in litigation or the administrative process. Even if such conduct would be egregiously abusive if it were directed toward a citizen -- and I do not so conclude -- nevertheless, "governmental conduct that may be considered 'shocking' when it serves to deprive the life, liberty or property of a citizen may not be unconstitutional when directed at an alien." Doherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991). Accepting plaintiff's allegations and all reasonable inferences therefrom as true, I conclude that there is nothing whatsoever in DOJ's advocacy to Congress that shocks the conscience of the court, notwithstanding the timing or specific intent of any lobbying activity that may have taken place.
D. Equitable Claims Related to Adjudicative Delay
Plaintiff's remaining allegations of intentional adjudicative delay, even if proven, fail to state a claim for which relief may be granted. Plaintiff alleges that his application was made on October 30, 1992. (Second Amended Pet. P 33.) INTCA was enacted into law on October 25, 1994. Any delay that may have occurred after the enactment of INTCA could not have had an effect on the disposition of plaintiff's claim. Perhaps plaintiff might be able to establish that a two year period was an unreasonable amount of time for an administrative decision to be reached and for administrative remedies to be exhausted. But see Wright v. Califano, 587 F.2d 345, 353 (7th Cir. 1978) (noting that courts are ill-suited to determine appropriate length of time for particular administrative actions).
Plaintiff's proposed claims for equitable relief based upon this delay, whether brought under Bivens or the Administrative Procedure Act ("APA"), cannot withstand a motion to dismiss. For that reason, equitable estoppel and other injunctive relief sought by plaintiff are not available.
1. Protected Due Process Interest
Where a government official or agency engages in undue delay for improper reasons, and thereby deprives plaintiff of some constitutionally protected interest, such delay may raise due process concerns.
The constitutionally protected interest at issue here is not plaintiff's alleged interest in a certificate of citizenship. As noted in this court's opinion granting defendant's motion to dismiss, plaintiff had no protected interest in that benefit for due process purposes. Plaintiff does not suggest that the procedures employed by the INS or its Administrative Appeals Unit ("AAU") resulted in an erroneous administrative denial of the certificate of citizenship. Rather, plaintiff acknowledges that the INS is not authorized to adjudicate constitutional claims, that it accordingly issued a denial, and alleges that INS improperly delayed the issuance of that denial. (See Second Amended Pet. PP 37-39, 60.) Where there is no legitimate claim of entitlement to an underlying benefit, claimants still have a due process right to a hearing at which they might attempt to establish eligibility for that benefit. Wilkinson v. Abrams, 627 F.2d 650, 665 & n.18 (3d Cir. 1980) (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972)). Therefore, plaintiff's only protected due process interest is his right to constitutionally satisfactory procedures in the administrative resolution of his claim.
At issue in a claim of administrative delay is what the Third Circuit has labeled "temporal due process." 627 F.2d at 665. Plaintiff claims that the procedures employed by the INS in his case violated his due process rights by causing an injurious delay in adjudication. Specifically, plaintiff alleges the following procedural flaws: (1) INS intentionally took an unusually long time at every step of its decisionmaking (Second Amended Pet. PP 47, 58, 60-61, 66); (2) INS improperly considered documentation which OSI was without authority to submit (id. PP 52-57); (3) INS erroneously remanded plaintiff's case to the District Director, based in part on its review of the OSI's documentation (id. PP 51-53); (4) INS failed to provide the OSI's documentation to plaintiff's counsel for six months after the remand (id. P 59); and (5) agents or employees of INS and DOJ conspired to delay plaintiff's adjudication, and thereby to deprive him of his constitutional rights (id. PP 65-68).
The irreducible core of due process is "the right to notice and a meaningful opportunity to be heard." LaChance v. Erickson, 139 L. Ed. 2d 695, 118 S. Ct. 753, 756 (1998) (citing Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494 (1985)). The Court, in determining what process is constitutionally due, has set forth three distinct factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest.
Gilbert v. Homar, 520 U.S. 924, 117 S. Ct. 1807, 1812, 138 L. Ed. 2d 120 (1997) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976)). Due process is flexible, however, and "calls for such proce dural protections as the particular situation demands." Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972)).
The private interest at stake in plaintiff's administrative review was his interest in an administrative resolution without undue or improper delay, rather than his ultimate interest in the benefit of citizenship. Because a final administrative denial was a jurisdictional prerequisite for plaintiff's action in federal court, and only in federal court could plaintiff litigate the constitutionality of a statute, plaintiff's dispute is with the timing of the denial, and not with the denial itself. The protected interest in avoiding unreasonable delays at the second level of administrative appellate review, such as plaintiff's final administrative denial by the AAU upon motion for reconsideration, "is of lesser significance than the initial determination of eligibility following an evidentiary hearing." Wilkinson, 627 F.2d at 666 (upholding constitutionality of delay in second level appeals from unemployment benefit claims). The Third Circuit has found that the "private interest in the prompt disposition of second level appeals is significantly weaker than the interest in a prompt initial hearing." Id. at 669 (emphasis added).
The risk that the procedures employed by the INS might deprive plaintiff of his interest in a speedy administrative resolution was more than negligible, under the circumstances alleged by plaintiff. However, I conclude that the probable value to plaintiff of any additional or substitute procedural safeguards to prevent such delay would have been negligible. The enactment of INTCA occurred in October 1994, prior to the Third Circuit's disposition of the government's denaturalization case against plaintiff.
INTCA played no part in the Third Circuit's decision. United States v. Breyer, 41 F.3d 884, 887 n.2 (3d Cir. 1994). It is a highly speculative contention, at best, that a speedier exhaustion of plaintiff's administrative remedies would have resulted in a judicial decision on the merits prior to the passage of INTCA. It is still more speculative that plaintiff would have been granted the relief he sought, in this court or at any level of appellate review.
The government's interest in the procedures that it allegedly employed is not limited to its alleged improper desire to delay plaintiff's final administrative denial. Rather, the government may assert its legitimate interests in presenting all available pertinent evidence to an adjudicative body, in giving all due consideration to such evidence, and in generally affording full consideration at every stage of the deliberative process. To whatever extent plaintiff desired to challenge on any grounds the materials submitted by the OSI, plaintiff's allegations indicate that he had approximately two months to do so, because his counsel received those materials in March 1994, and the District Director's decision on remand took place in May 1994. (Second Amended Pet. PP 58-59.) It was the AAU's decision to remand that afforded plaintiff the opportunity to address the documents that were allegedly improperly submitted by OSI, and to be heard on that issue by the District Director, the primary decisionmaker in the administrative process.
Accepting plaintiff's allegations and all reasonable inferences therefrom as true, I conclude that none of the issues identified by plaintiff had a substantial adverse impact upon plaintiff's core due process rights to notice and to a meaningful hearing, and that whatever their flaws, those procedures afforded plaintiff all the process to which he was due.
2. Remedy for Undue Delay
Even if the undue delay did in some way violate plaintiff's due process rights, I conclude that plaintiff is not entitled to the relief he seeks. While administrative agencies "are often guilty of unconscionable delay," the tools available to courts for remedying such delay are weak and limited, even "against egregious, prejudicial, unjustifiable administrative foot-dragging." Maxon Marine, Inc. v. Director, Office of Workers' Compensation Programs, 39 F.3d 144, 147 (7th Cir. 1994).
During the alleged delay following his October 30, 1992 application, plaintiff had the opportunity to pursue timely judicial relief for an unlawful or unreasonable delay by the INS. Plaintiff does not allege that he did so at any time prior to the final administrative denial of his application on December 30, 1996. An action could have been brought under the Mandamus and Venue Act, 28 U.S.C. § 1361, or under the APA, which allows a court to compel "agency action unlawfully withheld or unreasonably delayed." Independence Mining Co. v. Babbitt, 105 F.3d 502, 506 (9th Cir. 1997) (quoting 5 U.S.C. § 706(1)).
Assuming arguendo that plaintiff's due process rights were violated by the agency delay, the APA specifies the statutory remedy for an agency action found to be "contrary to [a] constitutional right." 5 U.S.C. § 706(2)(B). The reviewing court shall "hold unlawful and set aside" such action. Id. § 706(2). Even if plaintiff's proposed claim under § 706(2) were meritorious, I point out that this remedy could only result in the reconsideration of plaintiff's claim to derivative citizenship, whether by the INS or by this court, under the same provisions of INTCA that I have upheld as constitutional and applicable to plaintiff. Accordingly, I conclude that plaintiff's injury is not redressable under the APA, which can provide none of the relief sought by plaintiff.
Plaintiff's motion to amend will be denied because of plaintiff's dilatory motive and because the petition, as amended, would fail to state a claim for which relief may be granted. An appropriate order follows.
AND NOW, this 27th day of August, 1998, upon consideration of plaintiff's motions to amend, and the responses thereto, IT IS HEREBY ORDERED that:
1. Plaintiff's motions to amend (Documents 18 and 19) are DENIED.
2. Individual defendants' motion to dismiss (Document 24) is DENIED AS MOOT.
3. The clerk is directed to mark this action closed for statistical purposes.
William H. Yohn, Jr., Judge
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The weather continued to favour us again, beginning with overcast skies before bright sunny periods, ending the day with cloudy conditions once again.
The morning began at 8am when the van was loaded with additional support items needed for the day as well as items identified as required from the previous day.
Despite having to jump start the van due to a flat battery, the team was at the quarry setting up the control gazebo by 9.15am, establishing mains power setup and an internet connection in short time.
The Omnidirectional Stereo Camera pair brought to the trial by the Department of Cybernetics of the Czech Technical University (CZUT) was mounted on the 1.4m mast in a forward/rearward configuration providing near 360 degree coverage of the test site. Image sets were captured over a three hour period with the Rover executing various manoeuvres, including point turning and obstacle negotiation.
Rover-to-control communications were close to being established before lunch and this should be resolved this afternoon.
We received the news that one participant and her equipment would not be arriving at the quarry site until Friday and that the other would not be arriving until the end of the today. Both were due to last-minute technical hitches – a common occurrence with state-of-the-art development models. Nevertheless we continued to image in the afternoon using the CZUT system and gathered sufficient material to complete the imaging brief for that instrument – a good achievement. We began the installation of an early prototype stereo camera pair with pan and tilt unit provided by UK company SciSys and captured some video footage on a third camera mounted at the front of the Rover platform.
The day ended with a discussion of the installation on the mast head of the University of Aberystwyth's Pan Cam unit which we will install tomorrow morning early. Representatives from the Mullard Space Science Laboratory (UCL) and DLR in Germany will also have their imaging units fitted to the Rover for some image runs in the afternoon. We hear that the BBC and Channel 4 television crews will be visiting tomorrow and perhaps a film crew from the German TV channel ZDF so it will be a day busy, beginning at 7.30am.
|Day 1 of the Mars Rover Field Trials
|Day 4 of the Mars Rover Field Trials
|Day 2 of the Mars Rover Field Trials
|Day 5 of the Mars Rover Field Trials
|Day 3 of the Mars Rover Field Trials


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Written by Dan Miller
Exelon Generation will conduct its semi-annual, full volume test of the emergency warning sirens surrounding Three Mile Island Generating Station at about 12:15 p.m. Thursday, Dec. 1.
This is one of two semi-annual tests performed each year.
The TMI emergency warning siren system consists of 96 sirens located in parts of Cumberland, Dauphin, Lancaster, Lebanon and York counties that are located within a 10-mile radius of TMI. The sirens are not a signal to evacuate, but a warning to tune to a local Emergency Alert Broadcast television or radio station. County emergency management authorities activate the sirens, which can be used in the event of any emergency, including severe weather.
Three Mile Island Generating Station is located several miles south of Middletown. The plant generates enough carbon-free electricity for 800,000 homes.
Last Updated on Wednesday, 30 November 2016 13:21
Hits: 395
Written by Dan Miller
Middletown expects to reduce its annual information technology costs by about $50,000 in 2017 as a result of borough council hiring another company to provide IT services to the borough on Nov. 15.
Council approved a one-year contract with Intermix IT of Harrisburg to provide IT services to the borough for $4,268.35 a month in 2017.
Intermix IT comes on board on Dec. 1 to begin replacing 2K Networking, also of Harrisburg, the company that has been providing IT services to the borough since mid-2012.
The borough had been paying 2K Networking about $8,800 a month on average, according to Finance Director Bruce Hamer. So council in July voted 9-0 to rebid the contract for 2017. 2K Networking was one of five companies that bid on the borough contract. Staff recommended going with Intermix IT.
Council on Nov. 15 also voted to hire PFM Group to manage the borough's pension investments. PFM was one of three firms that submitted a proposal and made a public presentation before borough council. The others were Wells Fargo Advisors and Morgan Stanley.
Council President Ben Kapenstein is employed by PFM Group and recused himself from the proceedings and the vote.
Councilors Dawn Knull and Diana McGlone both voted against hiring PFM.
"I do not feel that we should be hiring any firm connected to a council member," Knull said.
McGlone also objected to hiring any firm that employed a councilor. McGlone further stated that she felt Morgan Stanley "was better suited to be the overseers of the borough's investment profile."
Last Updated on Wednesday, 30 November 2016 12:34
Hits: 174
Written by Eric Wise
Residents of Lower Swatara Township will pay about $30 more per year for trash removal under the new contract approved unanimously by township commissioners Nov. 16.
The commissioners solicited bids based on their specifications, with the low bid coming from Lebanon Farms Disposal. Under the deal, the residential rate is $62.48 per quarter for the next five years (about $250 per year), an increase from the old quarterly rate of $55.11.
Residents will also have to adjust to pickup days of Monday and Tuesday to Thursday and Friday, due to the hauler's schedule.
Residents with the regular service are permitted four bags or one toter along with one bulk item per week. Toters, sometimes called curb carts, will be distributed at the expense of the waste hauler under the contract. However, residents may continue using their own bags and cans if they prefer. In addition to the cost of the carts, haulers must also absorb the higher incinerator tipping fees that are anticipated for the coming year, Township Solicitor Peter Henninger said.
Removal of yard waste, on alternating weeks from spring to fall, will not change. Customers may pay $6 per additional cans or bags and $25 for additional bulk items, over the one bulk item permitted weekly.
The township's current waste hauler, Penn Waste, bid $70.70 per residence per quarter. Ed Ward, Penn Waste's manager for municipal contracts, said the township should rebid the waste contract. During the bid period, Penn Waste had clarified the township's $2 per quarter administrative fee should be added in the bid. Ward said Lebanon Farms had not followed the bid protocol regarding the $2 fee and must be rejected.
Ward complained that the township had increased its own costs by requiring the toters, which are to be provided with a township logo on each side, in the colors specified.
"I don't have a problem using your logo on the carts," said Joe Barry, president of Lebanon Farms. "I am the low bid and I will stand behind it."
Henninger said when he received Lebanon Farms' bid and confirmed with them that the $2 fee had not been included in the initial bid of $60.48, the company had agreed to have its bid considered with the fee added.
"Everyone had a fair chance to bid," said Commissioner Todd Truntz, who said he did not believe the township needed to solicit bids again.
The new contract will begin in January.
Last Updated on Wednesday, 30 November 2016 12:24
Hits: 149
Written by Dan Miller
Joey Keating and Scott Shaffer — the two recent Middletown Area High School graduates who were pulled from the wreckage of their burning car on Friday, Nov. 25 — are in stable condition in the Lehigh Valley Hospital Burn Center as of Tuesday, Nov. 29, a hospital official told the Press And Journal.
Hundreds of people from the Middletown area gathered on a hilltop at the Smith's Tree Farm in Swatara Township on Sunday night, Nov. 27, to hold a community prayer vigil for Shaffer and Keating.
Keating, who graduated in 2016, and Shaffer, a 2015 graduate, were pulled out of their car as the vehicle was becoming engulfed in flames following a single-car crash shortly after 11 p.m. along the 300 block of Stoner Drive in Lower Swatara Township on Friday, Nov. 25.
Mavis Dixon and her daughter Jennifer Dixon of Middletown are being credited with saving the life of one of the two young men. The other was saved by two other men who arrived at the crash shortly after the Dixons: Aaron Young and Rick Cruz, both of Lower Swatara Township.
The Dixons and Keating and Shaffer were all on their way home from the Middletown Blue Raiders' 40-13 triumphant football win over Scranton Prep in the PIAA Class 3A quarterfinals in Bethlehem on Friday night.
The car driven by Shaffer was the only vehicle involved in the accident, according to a news release from Lower Swatara Township police. The crash remains under investigation, police said.
Keating and Shaffer both sustained "severe burns to the lower extremities" and were air-lifted to Lehigh Valley Hospital Burn Center, according to police.
"Our prayers are focusing on their healing," said the Rev. J. Richard Eckert, pastor of St. Peter's Evangelical Lutheran Church in Middletown, who spoke and led prayers at the vigil.
The vigil
Shaffer worked at Smith's Tree Farm.
"Scott has been one of the most amazing employees and could run this tree farm with his eyes closed," Sherri Smith posted on the tree farm's Facebook page. She owns the farm with her husband, Steve.
Hundreds showed up for the impromptu candlelight vigil, even though the Smiths had only announced it on their Facebook page Saturday night. So many people showed up that organizers of the event ran out of candles to give away. Organizers estimated about 400 people attended.
Fire police and other first responders were out in force directing traffic and parking vehicles in the fields across the street from the tree farm entrance on 80th Street in Swatara Township, just off Fiddler's Elbow Road.
The Smiths decorated one of their large Christmas trees with special ornaments and bows in honor of Scott and Joey. The word "Hope" was hung at the top of the tree.
People from all over the Middletown area community were invited to place their own personalized ornaments on the tree. Crowds of people stood around and near the tree holding lit candles, holding hands, praying and softly singing hymns like Amazing Grace.
"What a statement to the families, what a statement to these two young men," Eckert said. "I do believe although they may not see us tonight they are feeling the power of your love and grace here on this hilltop that they love."
'We gotta get him out'
Mavis Dixon and her daughters, including Jennifer, were also at the vigil.
The car had flipped over on its side, Mavis said. Jennifer kicked the car window three times to bust it out.
One of the two boys "reached back with his one arm. He was crying 'I'm on fire' and Jennifer said, 'We gotta get him out,'" Mavis said.
The two men, Young and Cruz, then arrived from another vehicle and rescued the other young man, Mavis said. Mavis' granddaughter Jocilyn Koser called 911.
"I don't think I would be able to sleep if I heard those two boys died that day," Jocilyn said.
Jennifer has always had "the instinct" to help people, Mavis said, adding that Jennifer as a 16-year-old lifeguard once saved the life of someone drowning in a pool.
Eckert lauded the rescuers as well as the paramedics, police and firefighters who responded to the crash.
"There is no doubt that those four people who responded, and if there were others, their actions were the actions of heroes, their actions were the actions of bravery, their actions were the actions of stepping up and stepping forward and reaching out to help two wonderful people in need and that's what they did, and we give thanks for what they did," Eckert said.
People who could not make Sunday night's prayer vigil were encouraged to come to the tree farm "anytime" to see the tree and to place their own ornament upon it for Shaffer and Keating, one speaker said.
Keating and Shaffer
Keating was part of the 2015 Homecoming Court. He had played football on the Blue Raiders' varsity squad until his sophomore year, when he had a brain tumor removed and was no longer allowed to play, school district spokeswoman Jody Zorbaugh told the Press And Journal. But he remained with the football team, serving as a student coach in his senior year.
Joey had just started at Penn State, said Michael Swartz Jr. of Middletown, who was at the vigil with Jamie Rishar and the couples' young daughter.
Keating is the son of Swartz's cousin.
"My mom wanted me to get some pictures of all the people here, to give to (Joey's mom) to show all the support that people are giving," Swartz said. "He (Joey) has already been through a lot to begin with."
Rishar said she is close friends with Joey's parents Rachelle and Brian Keating of Lower Swatara Township. Brian Keating had just been appointed to Middletown Area School Board on Monday, Nov. 21, to replace a school board member who had resigned in October.
Joey is a "very kind" boy who was "very popular" in high school, Rishar said. "He is not your typical 18-year-old kid. He was a little wise beyond his years and very caring. I think that is probably why all these people are here."
Shaffer is a year older at 19 and graduated from MAHS in 2015. He played soccer and was on the track and field team. Shaffer was also part of the Homecoming Court in the fall of 2014.
Shaffer was also one of eight seniors who competed in the high school's Mr. Middletown Pageant in 2015, a fundraiser for the high school's Mini-THON which goes toward fighting childhood cancers at the Penn State Hershey Children's Hospital.
Donations accepted
A Go Fund Me page has been set up on the web to accept donations to help the families of Scott and Joey meet emergency expenses.
In addition, a Go Fund Me page has been set up for Jennifer Dixon by one of her friends, Christine Gantz.
Dixon herself was injured and briefly hospitalized for burns she suffered as a result of the rescue, Gantz said. Dixon has two children and is missing time from her job working at the Army depot in New Cumberland, Gantz said.
"She put her life out there for these boys and she didn't have to do that," Gantz said.
Donations for Dixon can be made through an account set up for her by Belco Federal Credit Union, Gantz said in a post on her Facebook page.
Last Updated on Tuesday, 29 November 2016 16:41
Hits: 804
Five people have been appointed as board members of a new business association in Middletown by borough council and the Industrial and Commercial Development Authority.
Appointed on Nov. 15 were Carol Kupp, co-owner of Kuppy's Diner; Robin Pellegrini, owner of Alfred's Victorian; Scott Miller, deputy director of business development and strategic marketing at Harrisburg International Airport; Scott Sites, branch manager of Members 1st Federal Credit Union in Middletown; and Joe Sukle, publisher of the Press And Journal.
Efforts to start a business association in the borough have been underway for the past few years. In December 2014, articles of incorporation to create the Middletown Business Association were filed by the authority with the Pennsylvania Department of State.
Although it was created by the authority, the new business association is to be an organization that is independent of borough government, borough councilors have said in recent months.
However, it is likely that the borough will provide a liaison to the association, and Councilor Diana McGlone has spoke of the need for the association and the borough to act in a "collaborative" fashion.
The next step is for the new board to meet and "reorganize" although no date has been set, said Pellegrini, who has been among the most vocal in advocating for creating the business association.
"This is a temporary board" created to get the association moving, she said. Once the association can attract new members it will likely add more members to the board, she added. The association also needs to craft its own bylaws.
"It's a positive move," Pellegrini said of council and the authority appointing the five board members. "We can move forward."
Sites is a former borough councilor who also serves on the Middletown plannng commission.
— Dan Miller
Last Updated on Wednesday, 23 November 2016 15:41
Hits: 451


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