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[ { "docid": "16244399", "title": "", "text": "(1981). Under the regulations a PHA may establish additional criteria for determining applicant eligibility for participation in the program subject to the provision that the criteria be reasonably related to program objectives and receive approval of HUD as part of the PHA’s administrative plan. 24 C.F.R. § 882.-209(a)(3) (1981). Defendant YHA, as one of its criteria for determining\" eligibility for Section 8 housing, adopted a policy of denying participation in the Section 8 Program to individuals who owe debts to the YHA arising out of their prior occupancy in YHA projects. The relevant portion of this policy statement, which is embodied in section II, Paragraph A-4 of the statement, states: “Applicants who are former tenants of the Housing Authority and have vacated owing the Authority monies will not be considered eligible for participation until such monies are paid in full.” Appendix at 67. This statement of policy was part of the YHA’s administrative plan submitted to and approved by HUD and was in effect at the times in question. When the PHA determines that an applicant is eligible to participate in the Section 8 Program, it issues a Certificate of Family Participation. In this case, plaintiff Vandermark applied for a certificate of family participation in the Section 8 Program administered locally by defendant YHA in September, 1977. Her application was reviewed by the YHA and her name was placed on the waiting list in December, 1977. On January 3, 1978 Vandermark’s application for a certificate of family participation was approved. She was notified to appear on January 12,1979 for an enrollment interview. On January 5, 1979, she was advised that her application was being withdrawn because of an alleged debt of $194.30 owed to the YHA arising out of the occupancy of a YHA owned public housing unit in 1975. Appendix at 6, 32. Plaintiff Handy applied to the Section 8 Program on December 22, 1978. Her name was placed on the waiting list at that time, but was withdrawn 14 days later when she was notified by letter that a debt she owed to the YHA prevented her application" } ]

[ { "docid": "20488380", "title": "", "text": "learned) is the truth expounded so lucidly a full two decades ago in then Judge (now Chief Judge) Frank Easterbrook’s opinion for our Court of Appeals in N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir.1992): that the federal pleading system deals in claims, not in the state law concept of “causes of action.” In the state law system the congeries of facts that entitle a plaintiff to relief (thus on their own stating a “claim” in the federal sense) must be linked to a particular theory of recovery (with the combination thus constituting a “cause of action” in the state court sense). Because among too many federal practitioners that latter approach shows no signs of disappearing, this Court — which has tried without success to eradicate those weeds that tend to choke out the garden of proper federal pleading — will try once again by quoting liberally from Judge Easterbrook’s teaching at the page cited earlier (most citations omitted): Identifying legal theories may assist defendants and the court in seeing how the plaintiff hopes to prevail, but this organization does not track the idea of “claim for relief’ in the federal rules. Putting each legal theory in a separate count is a throwback to code pleading, perhaps all the way back to the forms of action; in both, legal theory and facts together created a “cause of action.” The Rules of Civil Procedure divorced factual from legal aspects of the claim and replaced “cause of action” with “claim for rehef ’ to signify the difference. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992). A complaint should limn the grievance and demand relief. It need not identify the law on which the claim rests, and different legal theories therefore do not multiply the number of claims for relief. One set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate. Indeed, Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir.1992), decided on the very same day as N.A.A.C.P. but by a different panel, made" }, { "docid": "20488382", "title": "", "text": "the point even more poignantly: In Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992), this court emphasized that a complaint need not point to the appropriate statute or law in order to raise a claim for relief under Rule 8 of the Federal Rules of Civil Proce dure. And, we held that a complaint sufficiently raises a claim even if it points to no legal theory or even if it points to the wrong legal theory as a basis for that claim, as long as “relief is possible under any set of facts that could be established consistent with the allegations.” It must be said, however, that all the fault is not to be placed solely at the doorstep of Chicago Metro’s counsel and the numerous other defense counsel in other federal cases who are similarly guilty of importing state court practice and principles into their federal practice. After all, plaintiffs’ lawyers (no doubt equally steeped in Illinois state court practice) set the stage here by splitting a single claim into separate counts, even though the only place that the Federal Rules of Civil Procedure (“Rules”) use the word “count” is in the last sentence of Rule 10(b) (emphasis added): If doing so would promote clarity, each claim founded on a separate transaction or occurrence — and each defense other than a denial — must be stated in a separate count or defense. Now then to Chicago Metro’s motion. It is easiest to begin with its unfounded attack on Counts III and V, counts that advance charges labeled there as “monopolization, attempt to monopolize and conspiracy to monopolize” (Count III) and “attempted monopolization” (Count V). On that score it is difficult indeed to understand what amounts to Chicago Metro’s third effort, short of trial, to get out from under its ultimate burden to prevail on those antitrust issues. Less than six months ago (on August 28, 2012, 2012 WL 3775974) this Court issued its memorandum opinion and order that scotched Chicago Metro’s effort to obtain a summary judgment ruling in that respect, employing language that could well have" }, { "docid": "11559356", "title": "", "text": "which this regulation applies, on the grounds of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this part. 49 C.F.R. § 21.5(b)(3) (emphases added); see also 49 C.F.R. § 21.5(b)(2) (recipients may not “utilize criteria or methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national origin”). Although Plaintiffs’ Amended Complaint actually cites only Section 601, as Judge Easterbrook of the Seventh Circuit observed: “Instead of asking whether the complaint points to the appropriate statute, a court should ask whether the relief is possible under any set of facts that could be established consistent with the allegations.” Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992) (citing, e.g., Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see Fed.R.Civ.P. 8. Thus, I will read the Amended Complaint to assert a cause' of action under Section 602. Defendants contend that, like Section 601, Section 602 does not afford Plaintiffs a private right of action. In Alexander, the Supreme Court interpreted Guardians as holding that “actions having an unjustifiable disparate impact on minorities could be redressed through agency regulations designed to implement the purposes of Title VI.” Alexander, 469 U.S. at 293. In Chester Residents, however, the Third Circuit determined that neither Guardians nor Alexander definitively settled the availability of a private right of action under Section 602. Nevertheless, after conducting its own analysis, the Third Circuit concluded that “private plaintiffs may maintain an action under discriminatory effect regulations promulgated by federal administrative agencies pursuant to section 602 of Title VI of the Civil Rights Act of 1964.” Chester Residents, 132 F.3d 925, 937. Pursuant to Section 602, the Department of Transportation has issued regulations providing a private cause of action based on discriminatory impact. See 42 C.F.R. § 21.5(b)(3) (prohibiting certain actions “with the purpose or effect” of discriminating) (emphasis added); see also New York Urban League, Inc. v. State of New York, 71 F.3d 1031, 1036 (2d Cir.1995)" }, { "docid": "2995482", "title": "", "text": "Cir.1995). It is unnecessary to specifically identify the legal basis for a claim as long as the facts alleged would support relief. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992). It is also true, however, that a party can plead out of court by alleging facts showing no viable claim. Jackson, 66 F.3d at 153-54; Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir.1993), cert. denied, 511 U.S. 1085, 114 S.Ct. 1837, 128 L.Ed.2d 465 (1994); Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir.1992). Additionally, as long as they are consistent with the allegations of the complaint, a party may assert additional facts in response to a motion to dismiss. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir.1996); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir.1994); Hrubec v. National Railroad Passenger Corp., 981 F.2d 962, 963-64 (7th Cir.1992). Exhaustion of Administrative Remedies In the amended complaint, it is alleged that plaintiffs have exhausted all administrative remedies. Defendant contends that this eonclusory allegation is insufficient and that the case should be dismissed for failure to adequately plead exhaustion. The enforcement provision of ERISA on which plaintiffs rely does not expressly require exhaustion of administrative remedies as a prerequisite to the bringing of a civil suit. 29 U.S.C. § 1132. Exhaustion is not a jurisdictional requirement, but a judicially created doctrine furthering the strong federal policy of encouraging private resolution of ERISA-related disputes. Kross v. Western Elec. Co., 701 F.2d 1238, 1244 (7th Cir.1983); Healy v. Axelrod Const. Co. Pension Plan & Trust, 787 F.Supp. 838, 842 (N.D.Ill.1992). It is well settled in this circuit that the decision to require exhaustion is a matter within the discretion of the trial court. Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir.1996); Powell v. A.T. & T. Communications, Inc., 938 F.2d 823, 825 (7th Cir.1991). As a general rule, an ERISA plaintiff must exhaust all available administrative remedies, but the requirement is relaxed in two instances: when a plaintiff" }, { "docid": "12841690", "title": "", "text": "that McCullah has changed legal theories from complaint to complaint is thus not important, because it is well established that plaintiffs are under no obligation to plead legal theories. See, e.g., Slaney v. Int’l Amateur Athletic Found., 244 F.3d 580, 600 (7th Cir.2001); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992). From the start, the only question has been whether McCullah satisfied the notice pleading standards of Rule 8 and if the facts he has presented would entitle him to relief under any applicable legal theory. In the discussion that follows, we confine ourselves for the sake of simplicity to the district court’s evaluation of the third and final complaint. The first lesson we take from Al-bright, Newsome I, and lenco, is that it is possible to state a § 1983 claim that relies on the Fourth Amendment. In Newsome I, we observed that Newsome did have a potential Fourth Amendment claim, but that it could not be pursued because the statute of limitations had run. Newsome I, 256 F.3d at 750. The Fourth Amendment was barely mentioned in lenco, and then only in passing. Ienco, 286 F.3d at 1000. Looking back directly to Albright, we find nothing in the various opinions that would require dismissal of McCullah’s Fourth Amendment claim. The Rehnquist plurality thought that Albright’s claims against the arresting officers should be judged under the Fourth Amendment. See Albright, 510 U.S. at 271, 114 S.Ct. 807. And while the plurality was at pains later in the opinion to express “no view as to whether petitioner’s claim would succeed under the Fourth Amendment,” its stated reason for reserving judgment was that Albright had failed to present the question in his petition for certiorari. Id. at 275, 114 S.Ct. 807. It would be an unwarranted stretch to interpret this language as foreclosing all claims for wrongful arrest under the Fourth Amendment, regardless of the particular facts at issue. Nor did Justice Kennedy’s concurring opinion conclude that the Parratt rule forecloses claims brought under the Fourth Amendment. Justice Kennedy’s concern was with the misuse of due process theories" }, { "docid": "14212211", "title": "", "text": "We must now hold the district court erred in so doing. Unfortunately, the court did not have the benefit at the time of a recent case of this court which we next discuss. On the same day we heard the present appeal we heard the appeal of a case that had originated in state court as an action for breach of contract, had been removed on the basis of ERISA’s grant of federal jurisdiction, and was then dismissed under Rule 12(b)(6). Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073 (7th Cir.1992). We initially found the plaintiff-appellant, Bartholet, had raised a claim that related to a benefit plan and, therefore, that ERISA preempted his state common-law claims. Id. at 1077. We added: It does not follow, however, that Bar-tholet’s suit should have been dismissed under Rule 12(b)(6). The district judge believed that until Bartholet amended his pleadings to invoke ERISA, all he had was a claim arising under state common law, and as state law is preempted the complaint failed. The assumption implicit in this approach is that a complaint must plead law as well as fact. Why? Rule 8(a) of the Federal Rules of Civil Procedure says that a complaint must identify the basis of jurisdiction and “contain a short and plain statement of the claim showing that the pleader is entitled to relief.” Although it is com mon to draft complaints with multiple counts, each of which specifies a single statute or legal rule, nothing in the Rules of Civil Procedure requires this. To the contrary, the rules discourage it.... A complaint under Rule 8 limits the claim; details of both fact and law come later, in other documents. Instead of asking whether the complaint points to the appropriate statute, a court should ask whether relief is possible under any set of facts that could be established consistent with the allegations.... [T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal. Id. at 1077-78 (citations omitted). As in Bartholet, the district judge here dismissed the Shannons’ claims because they erroneously stated their claims" }, { "docid": "5631628", "title": "", "text": "had a discriminatory effect on Orthodox Jews, whether the mandatory on-campus policy is reasonably necessary to achieve an important business objective of Yale College, and, if so, whether Yale unreasonably refused to adopt an alternative, feasible policy that would have provided a comparably effective means of meeting Yale’s educational and financial objectives without imposing significant additional burdens. . See Peter E. Mahoney, The Ends of Disparate Impact: Doctrinal Reconstruction, Fair Housing and Lending Law, and the Antidis-crimination Principle, 47 Emory L.J. 409 (1998) (identifying factors which allowed competing disparate impact standards to develop); Thomas P. Vartanian, Robert H. Le-dig, and Alisa Babitz, Disparate Impact Discrimination: Fair Lending at a Crossroads, 49 Consumer Fin. L.Q. Rep. 76 (1995) (noting the absence of a uniform standard of proof for housing-related disparate impact claims); Kristopher E. Ahrend, Effect, or No Effect: A Comparison of Prima Facie Standards Applied in “Disparate Impact” Cases Brought Under the Fair Housing Act (Title VIII), 2 Race & Ethnic Ancestry L. Dig. 64 (1996). . On this point, see especially Judge Cabranes’ opinion in Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 45-46, 39 Fed. R.Serv.3d 492 (2d Cir.1997) (confirming that a litigant's failure to cite the correct statutory section does not require the court to affirm the dismissal of her complaint so long as she has alleged facts sufficient to support a meritorious legal claim), as well as Albert v. Carovano, 851 F.2d 561, 571 n. 3 (2d Cir.1988) (en banc) (citing Newman v. Silver, 713 F.2d 14, 15 n. 1 (2d Cir.1983)); Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 600 (2d Cir. 1991) (\"[Defendant] ... point[s] out that [plaintiff] failed to plead the third party beneficiary theory in his complaint. To this, we simply respond that federal pleading is by statement of claim, not by legal theory.”); Michael v. Clark Equip. Co, 380 F.2d 351, 352 (2d Cir. 1967); Wade v. Johnson Controls, Inc., 693 F.2d 19, 21 (2d Cir.1982); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073 (7th Cir. 1992) (complaint does not have to state a legal theory and specification" }, { "docid": "8721032", "title": "", "text": "Dist.1992). Statutes such as 745 ILCS 10/8-101 that establish short time limits for suing governmental bodies are especially poor candidates for absorption under § 1988. States are not free to endow themselves and their employees with special protection from § 1983 suits, which after all apply only to state actors. See Dixon v. Chrans, 986 F.2d 201 (7th Cir.1993) (holding that states may not modify the tolling rule for prisoners’ suits only when public personnel are defendants, while preserving tolling for suits against private parties). The idea behind Owens and Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), is to apply to the states the same periods of limitation that they deem satisfactory for private suits within their borders; states’ desire to afford ample opportunities to victims in ordinary private litigation gives vicarious protection to victims of constitutional torts. To all of this the defendants’ principal reply is that the plaintiffs forfeited any application of the two-year period by failing to contest defendants’ invocation of 745 ILCS 10/8-101 in the district court. Actually plaintiffs did make the right arguments, but only after the district court had eliminated the school discrimination claims from the case. Because the litigation was ongoing when plaintiffs presented their arguments to the district court, our case is a far cry from Deppe v. Tripp, 863 F.2d 1356, 1361-62 (7th Cir.1988), which held that litigants who fail to make accurate objections to jury instructions in civil cases may not invoke the plain error doctrine on appeal. The school counts were dismissed under Fed.R.Civ.P. 12(b)(6), and when acting on a motion to dismiss the district court is supposed to indulge all factual and legal possibilities in plaintiffs’ favor. See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073 (7th Cir.1992). Plaintiffs did not concede that the statute of limitations bars their claims; they simply missed one good argument in support of a legal position they explicitly advanced and developed. A court should apply the right body of law even if the parties fail to cite their best cases. Elder v. Holloway, -U.S.-, 114 S.Ct." }, { "docid": "3565590", "title": "", "text": "he did not do so. On September 27, 1988, Aetna sent Mr. Thomason a letter that opened with the words, “Your Group Life Insurance Policy has been extended during your total disability without cost to you.” Another such letter was sent on September 26, 1989. Mr. Tho-mason died on January 9, 1990. Mrs. Tho-mason, a named beneficiary under the group policy, then filed a claim for $46,500 in life insurance benefits. Aetna denied the claim and this litigation ensued. Plaintiff originally brought her suit in Illinois state court, alleging breach of contract and violation of the Illinois Insurance Code. Aetna thereafter removed the action to the federal system, on the ground that plaintiffs cause of action was preempted by ERISA and hence it involved a federal question. 28 U.S.C. §§ 1331,1441(b). This was quite correct. With few exceptions not relevant here, ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” 29 U.S.C. § 1144(a). See also Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1075 (7th Cir.1992) (“[A] complaint reciting that the claim depends on the common law of contracts is really based on [ERISA] if the contract in question is. a pension plan_ [A] complaint about pensions rests on federal law no matter what label its author attaches”). “[Federal preemption] knocks out any effort to use state law, including state common law, to obtain benefits under such a plan.” Pohl v. National Benefits Consultants, Inc., 956 F.2d 126, 127 (7th Cir.1992). Plaintiff therefore filed an amended complaint in fed eral court that was purportedly based on federal common law: She would like this Court to hold that by sending Mr. Thomason letters apparently referring to continuing life insurance coverage, Aetna waived its right to rely on the express terms of its “extended coverage” provision. This requires the Court to determine whether such common law principles of waiver are applicable in the ERISA context. Analysis That ERISA preempts state law, including state common law, does not mean that all common law concepts are automatically inapplicable in the ERISA" }, { "docid": "8827783", "title": "", "text": "C.F.R. § 1.5; F.T.C. v. Mary Carter Paint Co., 382 U.S. 46, 47-48, 86 S.Ct. 219, 221, 15 L.Ed.2d 128 (1965). Even so, as the administrative agency charged with preventing unfair trade practices, the Commission’s assessment of what constitutes deceptive advertising commands deference from the judiciary. F.T.C. v. Colgate-Palmolive Co., supra, 380 U.S. at 385, 85 S.Ct. at 1042-43; see also Kraft, Inc. v. F.T.C., 970 F.2d 311, 320 (7th Cir.1992), cert. denied, 507 U.S. 909, 113 S.Ct. 1254, 122 L.Ed.2d 652 (1993). It is no doubt for that very reason that even the Illinois statute mandates consideration of the FTC’s views on what constitutes an unfair, misleading, or deceptive act. 815 ILCS § 505/2, quoted in n. 1, supra. We reject Finlay’s suggestion that the district court was not required to address these regulations because Sanfield’s complaint did not cite them. Finlay Br. 24. Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claim”; it does not require the plaintiff to plead legal theories. E.g., Goren v. New Vision Int’l, Inc., 156 F.3d 721, 730 n. 8 (7th Cir.1998). It is of no moment, consequently, that the complaint did not identify either of the two regulations on which Sanfield stakes its case. See id. (complaint’s citation of single statutory subsection did not preclude reliance upon another subsection that was not cited), citing Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992) (complaint need not cite statute on which claim is based). Finlay certainly cannot claim any sort of surprise: the second amended complaint was framed in the very language of these regulations (R. 164 Count I ¶ 8, Count II ¶ 8, Count III ¶¶ 7-8), briefing on the parties’ unsuccessful cross-motions for summary judgment addressed these provisions at length (R. 78 at 13-15; R. 84 at 8-13; R. 95 at 5-7,13-15; R. 99 at ,7-8, 8-11), the magistrate judge’s order denying those motions referenced the regulations (R. 124 at 20-24), and Sanfield’s proposed findings of fact and conclusions of law expressly relied upon the regulations to establish deception (R. 173 at" }, { "docid": "8591647", "title": "", "text": "was an “interception” within the meaning of § 2510(4). The complaint does not maintain that Smith “intercepted” anything. Yet pleadings in federal court need not allege facts corresponding to each “element” of a statute. It is enough to state a claim for relief — and Fed.R.Civ.P. 8 departs from the old code-pleading practice by enabling plaintiffs to dispense with the need to identify, and plead specifically to, each ingredient of a sound legal theory. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); McDonald v. Household International, Inc., 425 F.3d 424 (7th Cir.2005); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073 (7th Cir.1992). Plaintiffs need not plead facts; they need not plead law; they plead claims for relief. Usually they need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of. Doe has done that; it is easy to tell what she is complaining about. Any district judge (for that matter, any defendant) tempted to write “this complaint is deficient because it does not contain...” should stop and think: What rule of law requires a complaint to contain that allegation? Rule 9(b) has a short list of things that plaintiffs must plead with particularity, but “interception” is not on that list. Complaints initiate the litigation but need not cover everything necessary for the plaintiff to win; factual details and legal arguments come later. A complaint suffices if any facts consistent with its allegations, and showing entitlement to prevail, could be established by affidavit or testimony at a trial. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The consistency proviso is why some complaints may be dismissed pronto: litigants may plead themselves out of court by alleging facts that defeat recovery. See, e.g., Walker v. Thompson, 288 F.3d 1005 (7th Cir.2002). Complaints also may be dismissed when they show that the defendant did no wrong. For example, a complaint alleging" }, { "docid": "20488379", "title": "", "text": "MEMORANDUM OPINION AND ORDER MILTON I. SHADUR, District Judge. More than 2-1/2 years after this action was instituted and almost exactly a year after it has survived (albeit with some limitations) at the appellate level (672 F.3d 492 (7th Cir.2012), cited for convenience as simply “ADT, 672 F.3d at _”), codefendant Chicago Metropolitan Fire Prevention Company (“Chicago Metro”) has come forward with a motion to dismiss Counts II, III and V of the Supplemental Complaint here — a motion whose substance, if sound, should have been presented earlier in the case. Little wonder, then, that the plaintiff Alarm Companies’ responsive memorandum begins its “Introduction” section with this sentence: While in the abstract a party may test the sufficiency of the pleadings at any time during a case, this does not mean that Chicago Metro is entitled to submit such motion almost two and one-half years after the case was filed to first test the pleadings as if this case were a tabula rasa. What Chicago Metro’s counsel have obviously forgotten (or more likely have never learned) is the truth expounded so lucidly a full two decades ago in then Judge (now Chief Judge) Frank Easterbrook’s opinion for our Court of Appeals in N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir.1992): that the federal pleading system deals in claims, not in the state law concept of “causes of action.” In the state law system the congeries of facts that entitle a plaintiff to relief (thus on their own stating a “claim” in the federal sense) must be linked to a particular theory of recovery (with the combination thus constituting a “cause of action” in the state court sense). Because among too many federal practitioners that latter approach shows no signs of disappearing, this Court — which has tried without success to eradicate those weeds that tend to choke out the garden of proper federal pleading — will try once again by quoting liberally from Judge Easterbrook’s teaching at the page cited earlier (most citations omitted): Identifying legal theories may assist defendants and the court in seeing" }, { "docid": "12841689", "title": "", "text": "the two City of Chicago police officers who had arrested him had violated his substantive due process rights when they withheld exculpatory information and lied to the federal prosecutors who then, relying on those lies, initiated criminal proceedings against him. Id. at 1000. We reversed the district court’s award of summary judgment to the defendants, noting that our intervening decision in Newsome I came after the district court’s grant of summary judgment to defendants. This “unique procedural posture,” we concluded, was enough to justify giving lenco one last opportunity to amend his complaint to raise a claim under the Due Process clause that complied with the strictures of Newsome I. Id. at 998-99. We also found that the officers were not entitled to absolute testimonial immunity, because the claim did not rely on the existence of perjured testimony, and that the record was insufficient to evaluate the claim of qualified immunity. Id. at 1000-01. B It is important to recall that the district court’s dismissals in this case were all under Fed.R.Civ.P. 12(b)(6). The fact that McCullah has changed legal theories from complaint to complaint is thus not important, because it is well established that plaintiffs are under no obligation to plead legal theories. See, e.g., Slaney v. Int’l Amateur Athletic Found., 244 F.3d 580, 600 (7th Cir.2001); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992). From the start, the only question has been whether McCullah satisfied the notice pleading standards of Rule 8 and if the facts he has presented would entitle him to relief under any applicable legal theory. In the discussion that follows, we confine ourselves for the sake of simplicity to the district court’s evaluation of the third and final complaint. The first lesson we take from Al-bright, Newsome I, and lenco, is that it is possible to state a § 1983 claim that relies on the Fourth Amendment. In Newsome I, we observed that Newsome did have a potential Fourth Amendment claim, but that it could not be pursued because the statute of limitations had run. Newsome I, 256 F.3d at 750." }, { "docid": "5826513", "title": "", "text": "system of notice pleading, dismissal of the complaint under these circumstances is unnecessary. See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1075, 1077-78 (7th Cir.1992) (“[A] complaint reciting that the claim depends on the common law of contracts is really based on the ERISA if the contract in question is a pension plan. Congress has blotted out (almost) all state law on the subject of pensions, so a complaint about pensions rests on federal law no matter what label its author attaches.”); Kirch v. Health Care Service Corp., No. 97-5791, 1997 WL 538683 (N.D.Ill. Aug.27, 1997). Instead of dismissing a complaint for failing to include an ERISA citation, “the court must determine whether plaintiffs allegations state a claim for relief under one of ERISA’s civil enforcement provisions.” Caldwell, 871 F.Supp. at 1395 (citing Slice v. Norway, 978 F.2d 1045, 1046-47 (8th Cir.1992)). Section 502(a)(1)(B) of ERISA provides that a participant or beneficiary of an ERISA plan may bring a civil action “to recover benefits due to him under the terms of his plan, [or] to enforce his rights under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). “A claim under this section, in essence, is the assertion of a contractual right under a benefit plan.” Strom v. Goldman, Sachs & Co., 202 F.3d 138, 140 (2nd Cir.1999) (citing Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1133 (7th Cir.1992)). At least facially in count one, the plaintiff states a claim to recover insurance proceeds or benefits under the Optional Plan, and such a claim “falls within the scope of’ this ERISA provision. See Carland v. Metropolitan Life Ins. Co., 935 F.2d 1114, 1119 (10th Cir.), cert. denied, 502 U.S. 1020, 112 S.Ct. 670, 116 L.Ed.2d 761 (1991). In separate sections to follow, the court will discuss the viability of this claim as well as the availability of federal relief under the plaintiffs other legal theories of waiver/estoppel and breach of fiduciary duty. The plaintiff advances all of these claims seeking the same relief: the recovery of life insurance proceeds under the Optional Plan. STANDARD OF REVIEW A court" }, { "docid": "5826512", "title": "", "text": "separate counts and legal theories for recovering the proceeds under the Optional Plan. (Dk.14). It is true that the complaint does not refer to any ERISA provision for bringing a civil action or obtaining relief. This omission, however, is not fatal in itself: As a general rule, a plaintiff should not be prevented from pursuing a valid claim just because she did not set forth in the complaint a theory on which she could recover, “provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits.” (citations omitted). The purpose of “fact pleading,” as provided by Fed. R.Civ.P. 8(a)(2), is to give the defendant fair notice of the claims against him without requiring the plaintiff to have every legal theory or fact developed in detail before the complaint is filed and the parties have opportunity for discovery. (citation omitted). Evans v. McDonald’s Corp., 936 F.2d 1087, 1090-91 (10th Cir.1991); see Caldwell v. Western Atlas Intern., 871 F.Supp. at 1395-96. Under our system of notice pleading, dismissal of the complaint under these circumstances is unnecessary. See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1075, 1077-78 (7th Cir.1992) (“[A] complaint reciting that the claim depends on the common law of contracts is really based on the ERISA if the contract in question is a pension plan. Congress has blotted out (almost) all state law on the subject of pensions, so a complaint about pensions rests on federal law no matter what label its author attaches.”); Kirch v. Health Care Service Corp., No. 97-5791, 1997 WL 538683 (N.D.Ill. Aug.27, 1997). Instead of dismissing a complaint for failing to include an ERISA citation, “the court must determine whether plaintiffs allegations state a claim for relief under one of ERISA’s civil enforcement provisions.” Caldwell, 871 F.Supp. at 1395 (citing Slice v. Norway, 978 F.2d 1045, 1046-47 (8th Cir.1992)). Section 502(a)(1)(B) of ERISA provides that a participant or beneficiary of an ERISA plan may bring a civil action “to recover benefits due to him under the terms of his plan, [or]" }, { "docid": "11559355", "title": "", "text": "that “[a] private right of action exists under section 601, but this right only reaches instances of intentional discrimination as opposed to instances of discriminatory effect or disparate impact.” Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 929 (3d Cir.1997). In this case, Plaintiffs allege discrimination solely on the basis of disparate impact. See Amended Complaint at ¶¶ 2-3, 46-48. Therefore, Plaintiffs cannot avail themselves of a private right of action under Section 601. Plaintiffs contend, however, that the Amended Complaint should be read to imply a cause of action pursuant to Section 602 of Title VI. Section 602 authorizes and directs federal agencies to promulgate regulations implementing the provisions of Section 601. See 42 U.S.C. § 2000d-l. Pursuant to Section 602, the Department of Transportation issued regulations which provide in relevant part: In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding persons from, denying them the benefits of, or subjecting them to discrimination under any program to which this regulation applies, on the grounds of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this part. 49 C.F.R. § 21.5(b)(3) (emphases added); see also 49 C.F.R. § 21.5(b)(2) (recipients may not “utilize criteria or methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national origin”). Although Plaintiffs’ Amended Complaint actually cites only Section 601, as Judge Easterbrook of the Seventh Circuit observed: “Instead of asking whether the complaint points to the appropriate statute, a court should ask whether the relief is possible under any set of facts that could be established consistent with the allegations.” Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992) (citing, e.g., Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see Fed.R.Civ.P. 8. Thus, I will read the Amended Complaint to assert a cause' of action under Section 602. Defendants contend that, like Section 601, Section" }, { "docid": "18741174", "title": "", "text": "American Nurses’ Ass’n v. Illinois, 783 F.2d 716, 723 (7th Cir.1986). “A complaint under Rule 8 limns the claim; details of both fact and law come later, in other documents.” Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992). When a party alleges fraudulent activity in its federal pleadings, however, “the circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R.Civ.P. 9(b) (as made applicable by Fed. R.Bankr.P. 7009). Rule 9(b) should nevertheless still be’read in conjunction with Rule 8(a). Thus, it is not necessary that a plaintiff plead each element of fraud, so long as the circumstances constituting fraud have adequately been set forth. See Midwest Grinding, Inc. v. Spitz, 976 F.2d 1016, 1020 (7th Cir.1992). When alleging fraud in a complaint, it is only necessary to set forth the basic outline of fraud and to indicate who made the misrepresentations and the time and place the misrepresentations were made. Vicom v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 777 (7th Cir.1994) (quoting Bankers Trust Co. v. Old World Republic Ins. Co., 959 F.2d 677, 683 (7th Cir.1992)) (Rule 9(b) requires the plaintiff to state: “the identity of the person who made the misrepresentation, the time, place and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff.”); DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990) (Rule 9(b) “particularity” means “the who, what, when, where, and how: the first paragraph of any newspaper story”); see also In re Janikowski 60 B.R. 784, 790 (Bankr.N.D.Ill. 1986) (Schmetterer, J.) (and cases cited). However, mere conclusory allegations without a description of the underlying fraudulent conduct will not satisfy the requirements of Rule 9(b) and may warrant dismissal. Veal v. First Am. Sav. Bank, 914 F.2d 909, 913 (7th Cir.1990). Skeletal pleading “upon information and belief’ is permissible as to matters peculiarly within an adverse party’s knowledge. See Leatherman v. Tarrant Cty. Narcotics Intel. and Coord. Unit, — U.S.-, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). However, allegations of fraud upon information and belief will not satisfy Rule 9(b) specificity requirements" }, { "docid": "14261666", "title": "", "text": "8 housing benefits. Vandermark, 663 F.2d at 438. While silent on the issue of whether the plaintiff possessed a property interest in the certification, the court’s consideration of the case implies its determination that such a threshold matter was satisfied, and it has been so interpreted. See Eidson v. Pierce, 745 F.2d 453, 461 n. 6 (7th Cir.1984). . The Fiscal Year 2002 Annual and Five Year Plan was in effect when plaintiff applied for vouchers on July 28, 2002, when Defendant Barnett initially denied her application on August 7, 2002, and at the time of the administrative hearing on September 19, 2002. . The United States Department of Housing and Urban Development provides PHAs with blank templates for completion and submission, which serve as the Annual and Five Year Plans. The templates address all of the statutorily required information a PHA must report and each PHA completes the template in accordance with its particular situation. See 64 Fed.Reg. 56844. . Section 4.8 of the Administrative Plan is entitled \"Grounds for Denial.” Among the criteria triggering mandatory denial are parties who \"[cjurrently [owe] rent or other amounts to any housing authority in connection with public housing or Section 8 programs” (subsection F), as well as those who \"[h]ave been or ... will be ... evicted from their current place of dwelling for non-payment of rent or for a cause eviction (subsection O). Certainly, these sections are referring to types of creditworthiness, but are specifically directed to rental or housing situations, and denial based on these criteria is permissible. This Court concludes that using specific types of creditworthiness as criteria is not the same as using creditworthiness generally as a basis for screening. . This Court has already determined that the first question must be answered in the afflr-mative. Supra, p. 376. . Subsection (f) provides: Hearing and notice requirement. (1) In general. In developing a public housing agency plan under this section, the board of directors or similar governing body of a public housing agency shall conduct a public hearing to discuss the public housing agency plan and to invite" }, { "docid": "4410225", "title": "", "text": "not matter whether a pleader places any label — or even the wrong label — on the claim or claims (Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir.1992) and NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir.1992); accord, this month’s opinion in Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963 (7th Cir.1992), quoting Hishon and emphasizing the word “consistent”). But because Johnsons’ counsel has indeed set out and labeled separate counts and because there might perhaps be some differences in treatment under the different federal statutes that Johnsons have invoked (see NAACP, 978 F.2d at 293), this opinion will address each of the claims in the sequence that they have been advanced. As for the Count I claim based on Section 1982, this Court is constrained to observe that the responsive presentation by Stephenses’ counsel is somewhat disingenuous. Counsel says (Mem. 2) that “case law, as decided by this Court, has held that the Plaintiffs have no cause of action under Sec. 1982 given the facts as pled,” pointing to the opinions by this Court’s colleague Honorable Marvin Aspen in Stackhouse v. DeSitter, 566 F.Supp. 856 (N.D.Ill.1983) (“Stackhouse I”) and 620 F.Supp. 208 (N.D.Ill.1985) (“Stackhouse II”). No matter how high a regard this Court has for its colleagues, our Court of Appeals periodically reminds us that we district judges do not make precedent. Another decision by another district judge is not one “decided by this Court,” either literally or in legal effect. In any case, it is really irrelevant whether this Court would agree with the analysis in Stackhouse I, which held that a number of race-discriminatory acts (including the firebombing of the parked car of the African-American plaintiff in that case) did not deprive that plaintiff of the real-property-related rights protected by Section 1982. What is relevant is that this Court does concur entirely in the conclusion later reached by its then colleague Honorable Nicholas Bua in Stirgus v. Benoit, 720 F.Supp. 119, 121-22 (N.D.Ill.1989), which upheld a Section 1982 claim based on the firebombing of the home of" }, { "docid": "14261665", "title": "", "text": "Elections, 259 F.Supp. 931 (D.N.J.1966) (housing authority of city was a body corporate and politic, and an agency of the city). . Although Landmark held that a New Jersey landlord may consider a prospective tenant’s creditworthiness in deciding whether or not to rent property to the tenant, that holding is of limited value in resolving the question extant here. The Court assumes that defendants intended only to draw an analogy between a permissible screening criterion New Jersey landlords may employ while reviewing applications from prospective tenants, and those criteria, authorized by federal regulation, available to a PHA screening applicants for federal housing assistance. . This section concerning sources of lawful income or rent payment as grounds for refusal to rent or lease was repealed by the New Jersey Legislature, effective September 5, 2002. See P.L.2002 c. 82, § 7. . In Vandermark, the Court of Appeals for the Third Circuit considered a due process claim brought by a plaintiff seeking review of a PHA’s determination that he was ineligible to receive a certification for Section 8 housing benefits. Vandermark, 663 F.2d at 438. While silent on the issue of whether the plaintiff possessed a property interest in the certification, the court’s consideration of the case implies its determination that such a threshold matter was satisfied, and it has been so interpreted. See Eidson v. Pierce, 745 F.2d 453, 461 n. 6 (7th Cir.1984). . The Fiscal Year 2002 Annual and Five Year Plan was in effect when plaintiff applied for vouchers on July 28, 2002, when Defendant Barnett initially denied her application on August 7, 2002, and at the time of the administrative hearing on September 19, 2002. . The United States Department of Housing and Urban Development provides PHAs with blank templates for completion and submission, which serve as the Annual and Five Year Plans. The templates address all of the statutorily required information a PHA must report and each PHA completes the template in accordance with its particular situation. See 64 Fed.Reg. 56844. . Section 4.8 of the Administrative Plan is entitled \"Grounds for Denial.” Among the criteria" } ]

[ { "docid": "22811517", "title": "", "text": "for persecution upon deportation. On October 15, 1985, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s findings, holding that status as a young, urban, working class male without military service did not constitute membership in a “particular social group” under the applicable statutes. The BIA further concluded that neither petitioner had established a “well-founded fear” of persecution to be eligible for asylum under 8 U.S.C. § 1158(a) or a “clear probability of persecution” to warrant prohibition of deportation under 8 U.S.C. § 1253(h). The BIA granted thirty days to the petitioners for voluntary departure. Sanchez and Escobar seek review in this court of the BIA’s decision as a final order of deportation under 8 U.S.C. § 1105a. II PERSECUTION BASED UPON SOCIAL GROUP MEMBERSHIP A. Refugee Status Based Solely on Group Membership An alien who can demonstrate that his individual circumstances present a “clear probability” or a “well-founded fear” of persecution based upon one of five statutory factors, “race, religion, nationality, membership in a particular social group, or political opinion,” is eligible for prohibition of deportation or a discretionary grant of asylum. See 8 U.S.C. §§ 1253(h), 1101(a)(42)(A). Ordinarily, an alien must establish, through specific, direct, and concrete evidence, that he personally would be singled out for persecution on account of one of these statutory factors, or that there is a reasonable possibility of such persecution. Some commentators have also contended that eligibility for asylum and prohibition of deportation may be premised solely upon the alien’s membership in a racial, religious, ethnic, or social group which has been targeted for persecution. See, e.g., Helton, Persecution on Account of Membership in a Social Group as a Basis for Refugee Status, 15 Colum.Hum.Rts.L.Rev. 39 (1983); Blum, The Ninth Circuit and the Protection of Asylum Seekers Since the Passage of the Refugee Act of 1980, 23 San Diego L.Rev. 327, 353 (1986). The petitioners’ principal claim for relief in this case is based upon the theory that they are representatives of an identifiable “social group” of young, urban, working class males of military age who have never served in the military or" } ]

[ { "docid": "23429148", "title": "", "text": "1990) (recognizing Cuban homosexuals as a particular social group); cf. Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988) (recognizing that former members of the Salvadoran national police could comprise a particular social group, but finding insufficient evidence of future danger). Courts of Appeals have deferred to Matter of Acosta’s broad interpretation of “particular social group” as encompassing any group, however populous, persecuted because of shared characteristics that are either immutable or fundamental. In Fatin v. INS, 12 F.3d 1233 (3d Cir.1993), for example, then-Judge Alito writing for the Third Circuit considered and rejected a petition by an Iranian woman who had been living in Iran since before the Islamic revolution and who claimed that, if she were removed to Iran, she would be forced to conform to fundamentalist Islamic norms. Id. at 1235-36. The court reasoned thus: We believe that there are three [elements that an alien must establish in order to qualify for withholding of deportation or asylum based on membership in such a group]. The alien must (1) identify a group that constitutes a “particular social group”-within the interpretation just discussed, (2) establish that he or she is a member of that group, and (3) show that he or she would be persecuted or has a well-founded fear of persecution based on that membership. In the excerpt from Acosta quoted above, the Board specifically mentioned “sex” as an innate characteristic that could link the members of a “particular social group.” Thus, to the extent that the petitioner in this case suggests that she would be persecuted or has a well-founded fear that she would be persecut ed in Iran simply because she is a woman, she has satisfied the first of the three elements that we have noted. She has not, however, satisfied the third element; that is, she has not shown that she would suffer or that she has a well-founded fear of suffering “persecution” based solely on her gender. Id. at 1240. The court reached this last conclusion because there was no record evidence that women in Iran were systematically persecuted for" }, { "docid": "14741455", "title": "", "text": "C.F.R. § 208.13(b)(l)(ii). The government can rebut this presumption by showing, by a preponderance of the evidence, a “fundamental change in circumstances” in the country so that the applicant no longer has a well-founded fear of persecution, or that “the applicant could avoid future persecution by relocating to another part of the country” and it would be reasonable to do so.8 C.F.R. § 208.13(b)(l)(i)(A), (B), (b)(3)(ii). If an alien fails to meet the asylum requirement of a well-founded fear of persecution, he or she generally cannot meet the higher standard needed to obtain withholding of removal or protection under the Convention Against Torture. Al Yatim v. Mukasey, 531 F.3d 584, 590 (8th Cir.2008). A. Ngengwe sought asylum alleging a well-founded fear of persecution based on “membership in a particular social group.” She defined the social group as any “widowed Cameroonian female member of the Bamileke tribe, in the Southern region that belongs to a family or has in-laws from a different tribe and region, the Bikom tribe in the Northwest province, who have falsely accused her of causing her husband’s death.” She also argued that she belongs to the broader social group of Cameroonian widows. The BIA, agreeing with the IJ, found that neither definition constituted a particular social group. This is a question of law reviewed de novo. Gomez-Zuluaga v. Attorney General of the U.S., 527 F.3d 330, 339 (3d Cir.2008). “Particular social group” is an ambiguous phrase, not defined in the statute. This court gives Chevron deference to the BIA’s reasonable interpretation of the phrase. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Ahmed v. Ashcroft, 396 F.3d 1011, 1014 (8th Cir.2005). The BIA defined the phrase in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The BIA used the doctrine of ejusdem generis (general words used with specific words should be construed consistent with the specific words), comparing the term particular social group to the" }, { "docid": "22547679", "title": "", "text": "and that the Colombian government is unable to protect the petitioners. Thus, the only question here is whether the persecution feared by the petitioners would be on account of race, religion, nationality, membership in a particular social group, or political opinion. The petitioners argue their fear of persecution stems from membership in a particular social group and imputed political opinion. Membership in a particular social group Ochoa argues he is a member of a social group comprised of business owners in Colombia who rejected demands by nar-co-traffickers to participate in illegal activity. The term “particular social group” is not defined by the Immigration and Naturalization Act. The BIA has said a social group requires “a common, immutable characteristic.” Matter of Acosta, 19 I. & N. Dec. 221, 233 (BIA 1985). In contrast, this court has said a social group requires a “voluntary associational relationship.” Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986). We harmonized these definitions by saying, “a ‘particular social group’ is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000). Key to establishing a “particular social group” is ensuring that the group is narrowly defined. This court has said: Major segments of the population of an embattled nation, even though undoubtedly at some risk from general political violence, will rarely, if ever, constitute a distinct “social group” for the purposes of establishing refugee status. To hold otherwise would be tantamount to extending refugee status to every alien displaced by general conditions of unrest or violence in his or her home country. Sanchez-Trujillo, 801 F.2d at 1577. This was of particular concern to the IJ and the BIA in this case. Both feared the social group was “too broad.” We agree. A social group of business persons in Ochoa’s circumstances is too broad to qualify as a particularized social group. There is neither a voluntary relationship nor an innate" }, { "docid": "2210107", "title": "", "text": "daughter to be a prime subject.” The judge found that the alleged social group, which he described as “women and children in Lithuania who are under 40 years of age, and who fear being kidnaped by criminals,” was not a recognizable social group for purposes of the INA as the statute has been interpreted by the BIA. See In re Acosta, 19 I. & N. Dec. 211, 214 (BIA 1985); In re C-A-, 23 I. & N. Dec. 951, 955 (BIA 2006). On March 18, 2008, the BIA affirmed the IJ’s decision and dismissed the appeal, agreeing that petitioner failed to meet her burden of establishing a well-founded fear of persecution on account of membership in a particular social group. The BIA endorsed the IJ’s finding that respondents feared criminal, not governmental, activity. It noted that while human trafficking in Lithuania is undoubtedly a “serious concern,” the IJ’s conclusion that it does not amount to persecution on the basis of a statutorily protected ground “properly reflects our immigration laws.” The BIA added that petitioner did not establish membership in a particular social group for purposes of asylum and withholding of removal, citing the Sixth Circuit’s decision in Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir.2005), which held that young, attractive Albanian women who fear being kidnaped and forced into prostitution do not constitute a particular social group for asylum purposes. See id. (“A social group may not be circularly defined by the fact that it suffers persecution. The individuals in the group must share a narrowing characteristic other than their risk of being persecuted.”). Burbiene petitioned for review of the BIA order. II. To qualify for asylum on the basis of a well-founded fear of future persecution, an applicant must prove that she has a well-founded fear that if she returns to her home country she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). Her fear must be both subjectively real and objectively reasonable. Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). “Where," }, { "docid": "22557263", "title": "", "text": "and the case is REMANDED for further proceedings. . Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988) (noting that, unlike the taxi drivers in Acosta who would have been persecuted only if they continued being taxi drivers who would not cooperate with the persecutors, being a former member of the police was a part of respondent’s past, and was thus an \"immutable characteristic, as it [was] one beyond the capacity of the respondent to change”). . Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (BIA 1990). . In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996). . In re V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997) (en banc). . Prior to Hernandez-Montiel, we used different criteria to determine particular social groups. In Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986), for instance, we held that particular social groups were defined by voluntary associational relationships. . Registered homosexuals in Cuba would not necessarily be recognized as such walking down the street. See Toboso-Alfonso, 20 I. & N. Dec. at 822. Former members of the Salvadoran national police would similarly not be recognizable \"on-sight.” See Fuentes, 19 I. & N. Dec. at 662. . We emphasize that to render C-A-’s statements consistent with a proper understanding of \"social visibility,” the requirement that an applicant’s conduct has “come to the attention of” his persecutors must not be construed to exclude all conduct that occurs \"out • of the public view.” If an applicant can demonstrate as a factual matter that he reasonably fears persecution because some covert action that he has taken may \"come to the attention of” his persecutors, then it is irrelevant whether the action would as a general matter not be discovered because of its covert nature. .We also note that the government has taken the litigation position that \"social visibility” does not require \"that members of a particular social group must literally be visible to the naked eye.” Br. for Resp’t in Opp'n 12-13, Contreras-Martinez v. Holder, -U.S. -, 130 S.Ct. 3274, 176 L.Ed.2d 1182 (2010)." }, { "docid": "23273060", "title": "", "text": "nationality, membership in a particular social group, or political opinion” As noted in the preceding section, to qualify for asylum, Karouni must establish that the future persecution he fears would be on account of one of the five statutory grounds: “race, religion, nationality, membership in a particular social group, or political opinion.” ■ 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). The Attorney General does not dispute that, as a general matter, homosexuals constitute a “particular social group” within the meaning of the Immigration and Naturalization Act (“INA”). Indeed, it would be difficult for the Attorney General to do so. “[A] ‘particular social group’ is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000). In Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990), the BIA upheld an IJ’s determination fhat a Cuban gay asylum applicant had established membership in a particular social group defined by the status of being homosexual. See id. at 822-23. In 1994, the Attorney General designated Toboso “as precedent in all proceedings involving the same issue or issues.” Att’y Gen. Order No. 1895-94 (June 19,1994). Two years later, the INS recognized that “in certain circumstances ... persons with HIV or AIDS may constitute a particular social group under refugee law.” Memorandum from David A. Martin, INS Office of General Counsel (Feb. 16, 1996), reported in 73 Interpreter Releases 909, 909 (July 8, 1996). And shortly thereafter, the INS formally adopted the “position ... that homosexuals do constitute a particular social group.” Memorandum from David A. Martin, INS General Counsel, to All Regional and District Counsel (Apr. 4, 1996) (emphasis added),available at ■ http://www.lgirtf.org/ newsletters/Fall96/F A96-14.html. The position of the State Department appears to be in accord with the INS’ position. In 2000, the State Department asserted that “[n]othing in international law can justify the persecution of individuals on the basis of sexual orientation.” Státement of U.S. Ambassador" }, { "docid": "23429161", "title": "", "text": "evident in [their] consideration, the validity of [their] reasoning, [and their] consistency with earlier and later pronouncements.” As explained below, the present case does not require us to resolve this issue because the Skidmore factors would not counsel deference to the particular IJ decision at issue. . We also note that the Department of Homeland Security (\"DHS”) has recently taken a similar stance in Matter of R-A-. Initially, the BIA held, reversing an IJ, that a Guatemalan woman facing domestic abuse was not facing persecution on account of social group membership. 22 I. & N. Dec. 906 (BIA 1999). Then-Attorney General Janet Reno overturned the decision, proposed new regulations for gender-related asylum claims (affirming that gender can be a sufficiently unifying characteristic), and ordered the BIA to reconsider the case after these regulations were finalized. While these regulations have not yet been finalized, DHS has since argued in a brief to the Attorney General that he should grant R-A- asylum under the Matter of Acosta standard. See Department of Homeland Security's Position on Respondent's Eligibility for Relief, Feb. 19, 2004, available at http://cgrs.uchastings.edu/documents/le-gaVdhs_brief_ra.pdf (visited Feb. 10, 2006). Specifically, the DHS now takes the position that \"married women in Guatemala who are unable to leave the relationship” are a particular social group under the law. Id. at 27-28. The Attorney General remanded the case to the BIA in January 2005, see Matter of R-A-, 23 I. & N. Dec. 694 (AG 2005), where it is currently pending. . We based this statement on a formulation from the Ninth Circuit which that court has since disavowed as dicta and as inconsistent with BIA and other circuit precedent. See Gomez, 947 F.2d at 664 (citing Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir.1986)); Hernandez-Montiel, 225 F.3d at 1092-93 & n. 5 (disavowing Sanchez-Trujillo). . The fear of future persecution, both subjective and objective, is evaluated with respect to the specific individual who asserts that fear. To the extent that the social group of which the petitioner claims to be a member is exceptionally broad, the need for the individual to prove that he," }, { "docid": "23429151", "title": "", "text": "shared characteristics that are either immutable or fundamental) while interpreting “on account of’ strictly (such that an applicant must prove that these characteristics are a central reason why she has been, or may be, targeted for persecution). As the Tenth Circuit explained in Niang v. Gonzales, “the focus with respect to [gender-related] claims should be not on whether either gender constitutes a social group (which both certainly do) but on whether the members of that group are sufficiently likely to be persecuted that one could say that they are persecuted ‘on account of their membership.” 422 F.3d 1187, 1199-1200 (10th Cir.2005) (quoting 8 U.S.C. § 1101(a) 42(A)). Other circuits have also deferred to Matter of Acosta’s broad definition of “particular social group.” See Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000) (recognizing as a “particular social group” in Mexico gay men with female sexual identities, and holding “that a ‘particular social group’ is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it”); Lwin v. INS, 144 F.3d 505, 512 (7th Cir.1998) (recognizing parents of political dissidents as “particular social group” under Matter of Acosta’s immutability test); Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir.1985) (recognizing petitioner’s family as a “particular social group”). Courts of Appeals have also followed the BIA’s holding in In re Fauziya Kasinga, 21 I. & N. Dec. at 358, that young women who reasonably fear customary genital mutilation are eligible for asylum under the “particular social group” rubric. See Mohammed v. Gonzales, 400 F.3d 785, 796-98 (9th Cir.2005); Niang, 422 F.3d at 1199-1200; Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.2004). Although this Court has not had occasion to consider de novo whether women facing genital mutilation could comprise a “particular social group,” we did find an applicant eligible for asylum based on her fear of genital mutilation in a case where the BIA conceded that the alleged harm was on account of" }, { "docid": "23429163", "title": "", "text": "in particular, reasonably fears being persecuted is certainly greater. This can be done either by showing that a significant portion of even the very broad group will be persecuted, or by establishing that there are good reasons for thinking that the particular alien will be singled out for persecution. The need for such proof will depend, of course, on the nature as well as the breadth of the social group, e.g., it may be readily assumed in the circumstances of a particular country that virtually every individual in a racial or ethnic group may reasonably fear future persecution, even though the group is very large. . To avoid unnecessary circularity or complexity, we choose this definition of Gao’s group, rather than one that includes as an additional element that the individuals in question object to their compulsory marriage. Needless to say, however, if a victim ceases to object to her forced marriage and seeks United States residence purely for other reasons, then she is not, as the statute requires, “unable or unwilling to avail ... herself of the protection of ... [her country of origin] because of persecution or a well-founded fear of persecution.’’ 8 U.S.C. § 1101(a)(42) (emphasis added). We note, additionally, that our definition of Gao's social group is tailored to the facts of this case and does not reflect any outer limit of cognizable social groups. We do not here reach, for example, whether young, unmarried women in rural China comprise a \"particular social group” under asylum law such that, if they have a well-founded fear of being forced into marriage, they are eligible for asj'lum. .Nor does it make any difference that Zhi is the only person likely to claim Gao as his property. The law does not distinguish between single persecutors and mobs, provided that the persecution is based on a specified ground and that the government is unable or unwilling to protect the victim(s)." }, { "docid": "22429538", "title": "", "text": "denied asylum to an Indo-Fijian man because his past persecution “arose not out of any of the respondent’s individual circumstances but rather was part of and parcel of the general level of violence ... directed against Indo-Fijians,” who constituted half the population of Fiji. Id. at 1356, 1358. On appeal, we “reject[ed] the notion that an applicant is ineligible for asylum merely because all members of a persecuted group might be eligible for asylum.” Id at 1359. Although the court did not consider whether Indo-Fijians were a particular social group, its reasoning supports the principle that the size and breadth of a group alone does not preclude a group from qualifying as such a social group. Because the BIA failed to apply both prongs of the Hemandez-Montiel definition to Perdomo’s claim that women in Guatemala constitute a particular social group, and because the BIA’s decision is inconsistent with its own opinions in Matter of Acosta, 19 I. & N. Dec. at 233-34, and In re C-A-, 23 I. & N. Dec. at 955, we grant Perdomo’s petition for review. We are mindful that under the ordinary remand rule, the agency should be given an opportunity in the first instance to make legal determinations entrusted to it by Congress. See Gonzales v. Thomas, 547 U.S. 183, 185, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006). This rule is particularly applicable here because we have said that “ ‘[particular social group’ ... is an amorphous term.” See Ramos-Lopez v. Holder, 563 F.3d 855, 859 (9th Cir.2009). We therefore remand for the BIA to determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo has demonstrated a fear of persecution “on account of’ her membership in such a group. See Thomas, 547 U.S. at 185, 126 S.Ct. 1613; see also Negusie v. Holder, - U. S. -, 129 S.Ct. 1159, 1167-68, 173 L.Ed.2d 20 (2009). V. Conclusion The petition for review is granted and remanded for further proceedings consistent with this opinion. PETITION FOR REVIEW GRANTED; REMANDED. . Prior to Perdomo's entry, her mother filed" }, { "docid": "22429527", "title": "", "text": "are Guatemalan and live in the United States” to be too broad to qualify as a protected social group. The BIA also rejected Perdomo’s revised definition of the protected social group — “all women in Guatemala.” The BIA concluded that this social group was even broader, and was a demographic rather than a cognizable social group under the INA. The BIA also upheld the IJ’s denial of withholding of removal and relief under CAT, and granted Perdomo sixty days for voluntary departure. II. Jurisdiction Our jurisdiction to review a final order of removal is governed by 8 U.S.C. § 1252. We have jurisdiction to review the denial of an asylum application when a petitioner raises a question of law, including mixed questions of law and fact. Morales v. Gonzales, 478 F.3d 972, 978-80 (9th Cir.2007). III. Standard of Review Whether a group constitutes a “particular social group” under the INA is a question of law we review de novo. Hernandez-Montiel v. INS, 225 F.3d 1084, 1091(9th Cir.2000). Where the BIA conducts its own review of the evidence and law rather than simply adopting the immigration judge’s decision, as here, our review is limited to the BIA’s decision. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006). IV. Discussion A. General Framework The Attorney General may, in his discretion, grant asylum to an alien who qualifies as a refugee within the meaning of INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). INA § 208(a)-(b)(l)(A), 8 U.S.C. § 1158(a)-(b)(l)(A). An alien establishes refugee status if she is unable or unwilling to return to her country of nationality either because of past persecution or a well-founded fear of future persecution on account of her race, religion, nationality, political opinion or membership in a particular social group. INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A); Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir.2005). The applicant bears the burden of proving her eligibility for refugee status. Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). B. Women as a Particular Social Group The INA does not provide a definition for the term “particular social group.” Hernandez-Montiel," }, { "docid": "23429152", "title": "", "text": "identities or consciences of its members that members either cannot or should not be required to change it”); Lwin v. INS, 144 F.3d 505, 512 (7th Cir.1998) (recognizing parents of political dissidents as “particular social group” under Matter of Acosta’s immutability test); Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir.1985) (recognizing petitioner’s family as a “particular social group”). Courts of Appeals have also followed the BIA’s holding in In re Fauziya Kasinga, 21 I. & N. Dec. at 358, that young women who reasonably fear customary genital mutilation are eligible for asylum under the “particular social group” rubric. See Mohammed v. Gonzales, 400 F.3d 785, 796-98 (9th Cir.2005); Niang, 422 F.3d at 1199-1200; Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.2004). Although this Court has not had occasion to consider de novo whether women facing genital mutilation could comprise a “particular social group,” we did find an applicant eligible for asylum based on her fear of genital mutilation in a case where the BIA conceded that the alleged harm was on account of Abankwah’s social group but found that she had not presented sufficient proof of past or future harm. See Abankwah v. INS, 185 F.3d 18, 21 (2d Cir.1999); accord Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir.2004) (noting agency concession). The general law in our own Circuit on particular social groups is less clear. In Gomez v. INS, we denied the petition of a woman whose asylum claim was based on the fact that she had been raped and beaten by guerilla forces on five different occasions between the ages of twelve and fourteen. 947 F.2d 660, 664 (2d Cir.1991). Gomez argued that, because of her past, she belonged to a particular social group-“women who have been previously battered and raped by Salvadoran guerillas”that was likely to be singled out for further persecution. Id. at 663-64. In rejecting this argument, we used broad language that could (and has) been read as conflicting with Matter of Acosta, see, e.g., Niang, 422 F.3d at 1199. In particular, in our general statement of law, we wrote that “[possession" }, { "docid": "22629804", "title": "", "text": "lightly discounted. Id. (citations omitted). An applicant may use testimonial, documentary, or expert evidence to show both a subjective and an objectively reasonable fear of future persecution. We stated in Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir.1998), that if documentary evidence is lacking, an “applicant’s credible, persuasive, and specific testimony may suffice” to establish an objective fear of persecution. Lukwago was not required to show that persecution would be more likely than not or even probable. Lukwago was only required to show that his fear was subjective and objectively reasonable. Gomez, 947 F.2d at 663; Lwin, 144 F.3d at 509. We thus turn to apply these general standards to Lukwago’s case. The BIA denied Lukwago’s claim that he had a well-founded fear of persecution by the LRA on three bases. The relevant paragraph of its opinion is set forth in the margin. The BIA stated that Lukwago is no longer a child and that he has not shown that he might be in any greater danger than other members of Uganda’s population. The BIA’s reference to Lukwago no longer being a child is not to the point because Lukwago does not assert, for purposes of his claim of a well-founded fear of future persecution, a social group based on age. He asserts that he is a member of the group of former child soldiers who have escaped. We incorporate here our prior discussion of the characteristics of a “particular social group” in the context of past persecution. See supra at 170-171. We note, however, that the issue presented for purposes of this discussion is distinguishable from the prior discussion in that this group is not dependent on a member’s current age, but rather the shared experience of abduction, persecution and escape at a time when he was a child. The INS has offered no persuasive reason why a “particular social group” under the INA may not consist of former child soldiers who have escaped LRA enslavement. In fact, when the BIA defined a “particular social group” in Acosta as “a group of persons all of whom share a" }, { "docid": "22429537", "title": "", "text": "where “[t]here is no unifying relationship or characteristic to narrow th[e] diverse and disconnected group.” Ochoa v. Gonzales, 406 F.3d 1166, 1171(9th Cir. 2005) (emphasis added). In Ochoa, the court determined that “business owners in Colombia who rejected demands by narcotraffickers to participate in illegal activity” was too broad because such a group had neither a voluntary relationship nor an innate characteristic to bond its members. Id. at 1170-71. Most recently, in Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir.2010), we noted that the proposed social group, “returning Mexicans from the United States,” was similar to the types of large and diverse social groups we considered in Ochoa and Sanchez-Trujillo, which we concluded were too broad to qualify as cognizable social groups because they shared neither a voluntary relationship nor an innate characteristic. Additionally, we have rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum. Singh v. INS, 94 F.3d 1353, 1359 (9th Cir.1996). In Singh, the BIA denied asylum to an Indo-Fijian man because his past persecution “arose not out of any of the respondent’s individual circumstances but rather was part of and parcel of the general level of violence ... directed against Indo-Fijians,” who constituted half the population of Fiji. Id. at 1356, 1358. On appeal, we “reject[ed] the notion that an applicant is ineligible for asylum merely because all members of a persecuted group might be eligible for asylum.” Id at 1359. Although the court did not consider whether Indo-Fijians were a particular social group, its reasoning supports the principle that the size and breadth of a group alone does not preclude a group from qualifying as such a social group. Because the BIA failed to apply both prongs of the Hemandez-Montiel definition to Perdomo’s claim that women in Guatemala constitute a particular social group, and because the BIA’s decision is inconsistent with its own opinions in Matter of Acosta, 19 I. & N. Dec. at 233-34, and In re C-A-, 23 I. & N. Dec. at 955, we grant" }, { "docid": "22770472", "title": "", "text": "former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” Hernandez-Montiel, 225 F.3d at 1093 (emphasis in original). See also Safaie v. INS, 25 F.3d 636, 640 (8th Cir.1994) (adopting the Ninth Circuit’s broad approach, citing Sanchez-Trujillo, 801 F.2d at 1576, as well as Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir.1985) and Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)). The Second Circuit has taken yet another approach. In Gomez v. INS, 947 F.2d 660, 664 (2d Cir.1991), the Second Circuit adopted the Ninth Circuit’s “voluntary associational relationship” standard, but additionally noted that the members of a social group must be externally distinguishable. “Like the traits which distinguish the other four enumerated categories — race, religion, nationality and political opinion- — -the attributes of a particular social group must be recognizable and discrete.” Ibid. See also Saleh v. United States Dep’t of Justice, 962 F.2d 234, 240 (2d Cir.1992). We have not previously stated a specific test in the Sixth Circuit, and in doing so now we recognize the deference due the BIA’s interpretation of the INA insofar as it reflects a judgment that is peculiarly within the BIA’s expertise. We therefore join the First, Third, and Seventh Circuits in adopting the BIA’s definition of a “particular social group.” See generally Fieran v. INS, 268 F.3d 340, 344 (6th Cir.2001); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Nevertheless, we return to the original decision of the BIA, which established that standard, in order to gain a fuller understanding of what it means to say that the members of a social group must share a “common, immutable characteristic.” In Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), the BIA held that a Salvadoran Taxi cooperative did not constitute a particular social group, even though the members were being persecuted because they refused to participate in work stoppages." }, { "docid": "23429162", "title": "", "text": "for Relief, Feb. 19, 2004, available at http://cgrs.uchastings.edu/documents/le-gaVdhs_brief_ra.pdf (visited Feb. 10, 2006). Specifically, the DHS now takes the position that \"married women in Guatemala who are unable to leave the relationship” are a particular social group under the law. Id. at 27-28. The Attorney General remanded the case to the BIA in January 2005, see Matter of R-A-, 23 I. & N. Dec. 694 (AG 2005), where it is currently pending. . We based this statement on a formulation from the Ninth Circuit which that court has since disavowed as dicta and as inconsistent with BIA and other circuit precedent. See Gomez, 947 F.2d at 664 (citing Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir.1986)); Hernandez-Montiel, 225 F.3d at 1092-93 & n. 5 (disavowing Sanchez-Trujillo). . The fear of future persecution, both subjective and objective, is evaluated with respect to the specific individual who asserts that fear. To the extent that the social group of which the petitioner claims to be a member is exceptionally broad, the need for the individual to prove that he, in particular, reasonably fears being persecuted is certainly greater. This can be done either by showing that a significant portion of even the very broad group will be persecuted, or by establishing that there are good reasons for thinking that the particular alien will be singled out for persecution. The need for such proof will depend, of course, on the nature as well as the breadth of the social group, e.g., it may be readily assumed in the circumstances of a particular country that virtually every individual in a racial or ethnic group may reasonably fear future persecution, even though the group is very large. . To avoid unnecessary circularity or complexity, we choose this definition of Gao’s group, rather than one that includes as an additional element that the individuals in question object to their compulsory marriage. Needless to say, however, if a victim ceases to object to her forced marriage and seeks United States residence purely for other reasons, then she is not, as the statute requires, “unable or unwilling to avail ..." }, { "docid": "12192213", "title": "", "text": "as a whole.’ ” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Here, Vega-Ayala raises no issue of law and challenges merely the agency’s assessment of the facts. In an asylum case, the applicant bears the burden of establishing that she is a “refugee” as defined by the INA. Villa-Londono v. Holder, 600 F.3d 21, 24 (1st Cir. 2010). Specifically, the applicant must demonstrate that she is unable or unwilling to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Where, as here, an applicant seeks asylum based on membership in a particular social group, she must establish that the proposed group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Paiz-Morales v. Lynch, 795 F.3d 238, 244 (1st Cir. 2015) (quoting M-E-V-G-, 26 I. & N. Dec. at 237). Substantial evidence supports the BIA’s finding that Vega-Ayala failed to show either immutability or social distinction. An immutable characteristic is one that “members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)). We bypass the government’s argument that Vega-Ayala has waived the immutability issue because Vega-Ayala’s immutability claim fails in any event. Being in an intimate relationship with a partner who views you as property is not an immutable characteristic. The BIA recognized in a recent decision that “married women in Guatemala who are unable to leave their relationship” may share an immutable trait, where specific facts demonstrated a woman’s inability to leave her abusive marriage. Matter of A-R-C-G-, 26 I. & N. Dec. 388, 392-95 (BIA 2014). The asylum applicant in A-R-C-G- “suffered repugnant abuse by" }, { "docid": "23273059", "title": "", "text": "F.2d 723, 726-27 (9th Cir.1988)). “Persecution need not be directly at the hands of the government; private individuals that the government is unable or unwilling to control can persecute someone” for purposes of asylum. Singh v. INS, 134 F.3d 962, 967 n. 9 (9th Cir.1998) (citing Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997)). “An alien’s ‘well-founded fear of persecution’ must be both subjectively genuine and objectively reasonable.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003) (citing Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999)). Karouni’s credible testimony satisfies the subjective component. See Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th Cir.2004). To satisfy the objective component, an alien must show that he has suffered from past persecution or that he has a “ ‘good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.’ ” Nagoulko, 333 F.3d at 1016 (quoting Duarte de Guinac, 179 F.3d at 1159). 2. “On account of race, religion, nationality, membership in a particular social group, or political opinion” As noted in the preceding section, to qualify for asylum, Karouni must establish that the future persecution he fears would be on account of one of the five statutory grounds: “race, religion, nationality, membership in a particular social group, or political opinion.” ■ 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). The Attorney General does not dispute that, as a general matter, homosexuals constitute a “particular social group” within the meaning of the Immigration and Naturalization Act (“INA”). Indeed, it would be difficult for the Attorney General to do so. “[A] ‘particular social group’ is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000). In Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990), the BIA upheld an IJ’s determination fhat a Cuban gay asylum applicant had" }, { "docid": "22429528", "title": "", "text": "the evidence and law rather than simply adopting the immigration judge’s decision, as here, our review is limited to the BIA’s decision. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006). IV. Discussion A. General Framework The Attorney General may, in his discretion, grant asylum to an alien who qualifies as a refugee within the meaning of INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). INA § 208(a)-(b)(l)(A), 8 U.S.C. § 1158(a)-(b)(l)(A). An alien establishes refugee status if she is unable or unwilling to return to her country of nationality either because of past persecution or a well-founded fear of future persecution on account of her race, religion, nationality, political opinion or membership in a particular social group. INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A); Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir.2005). The applicant bears the burden of proving her eligibility for refugee status. Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). B. Women as a Particular Social Group The INA does not provide a definition for the term “particular social group.” Hernandez-Montiel, 225 F.3d at 1091. The BIA has interpreted the term to mean a group with members who “share a common, immutable characteristic” that “members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); In re C-A-, 23 I. & N. Dec. 951, 955-56 (BIA 2006) (quoting the Acosta formulation and affirming continued adherence to it). The BIA has explained that “[t]he shared characteristic might be an innate one such as sex, color, or kinship ties,” which would make the fact of membership “something comparable to the other four grounds of persecution under the Act, namely, something that is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be changed.” In re C-A-, 23 I. & N. Dec. at 955 (quoting Acosta, 19 I. & N. Dec. at 233-34). The BIA also has clarified" }, { "docid": "23592789", "title": "", "text": "at 958-59; see also Matter of Fuentes, 19 I. & N. Dec. at 662. But, a former police officer singled out for repri- sal because of her role in disrupting particular criminal activity would likely not be eligible for asylum. In re C-A-, 23 I. & N. Dec. at 959. In the second scenario, the persecution the applicant fears is not a result simply of her status as a former police officer, but rather is a result occa- police officer, but rather is a result occa sioned by other factors more specific to the particular applicant. In sum, the BIA has adopted a broad definition of particular social group, one that encompasses groups united by a shared past experience. Nonetheless, in determining whether an applicant ultimately qualifies for asylum, courts must examine closely whether the persecution the applicant fears derives primarily from his or her status as a member of that particular social group or whether it derives primarily from some other factor. C. BIA’s Test is Reasonable The BIA’s interpretation of the ambiguous phrase particular social group is reasonable and merits our deference under Chevron. See Hong Ying Gao, 440 F.3d at 69-70 (stating that the BIA in Acosta adopted a reasonable interpretation of the statutory language); see also Ucelo-Gomez v. Gonzales, 464 F.3d 163, 171 (2d Cir.2006) (per curiam) (observing that the BIA in Acosta provided guidance as to what constitutes a particular social group). Our decision in Gomez v. INS, 947 F.2d 660 (2d Cir.1991), has been interpreted by some other circuits as laying down a test for what constitutes a particular social group that is at odds with the Acosta test. See, e.g., Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir.2005); Castellano-Chacon, 341 F.3d at 546 (6th Cir.2003); Mya Lwin v. INS, 144 F.3d 505, 512 (7th Cir.1998). However, we have recently clarified that the best reading of Gomez is one that is consistent with Acosta. See Hong Ying Gao, 440 F.3d at 69-70. Gomez involved a Salvadorian woman who applied for asylum on the grounds that she had been repeatedly raped as a youth" } ]

[ { "docid": "10546182", "title": "", "text": "York Bond Exchange. The remaining bonds were purchased from E.F. Hutton’s inventory. The bonds were bought during the last twelve days of 1980 with some of the settlement dates falling in January 1981. Platsis received purchase confirmation slips for each of the sixteen bond purchases. The slips for the Exchange bonds reflected commissions and showed that E.F. Hutton was acting as an agent. Those for the inventory bonds did not include commissions and showed that E.F. Hutton was acting as a principal/market maker. At some point before all of the bonds were settled, Platsis asked Potvin why some of the confirmation slips did not show commissions. Potvin explained that those purchases were from inventory and the brokerage did not charge commissions on inventory transactions. This statement was true. However, the trial court found that it was designed to, and did, deceive Platsis into believing that E.F. Hutton did not profit from inventory transactions. The court found that both Hutton and Potvin profited from the inventory sales, and found that the failure to explain this to Platsis, especially in light of his question regarding commissions, was a material omission in the face of a duty to disclose, and consequently violated Rule 10b-5. II. DISCUSSION A. Non-disclosure of Profits In order to establish a violation of Rule 10b-5, the plaintiff must show: (1) a misrepresentation or other fraudulent device; (2) a purchase or sale of securities in connection with the fraudulent device; (3) scienter by defendant in making the misrepresentation or omission; (4) materiality of the misrepresentation or omission; (5) justifiable reliance on the fraudulent device by plaintiff (or due diligence against it); and (6) damages resulting from the fraudulent device. Shivangi v. Dean Witter Reynolds, Inc., 825 F.2d 885, 888 n. 6 (5th Cir.1987). The trial court held that Potvin’s failure to disclose the amount of the production credits and markups earned on inventory sales was a deliberate, material omission in the face of a duty to disclose. We find that the trial court’s finding that the omission was deliberate was clearly erroneous, and we therefore reverse. Scienter is a necessary" } ]

[ { "docid": "19789507", "title": "", "text": "that individual issues of reliance exist and predominate over any common issues that might exist. Plaintiffs, on the other hand, argue that reliance is an issue common to the class and urge the Court to adopt the “fraud on the market” theory which imposes an objective standard for reliance in 10b-5 misrepresentation cases. Traditionally, a private action brought under SEC Rule 10b-5 is predicated on the Plaintiff’s actual reliance on the Defendant’s deception. Reliance is thus, the causal nexus between the Defendant’s conduct and the Plaintiff’s injury. In traditional cases of misrepresentation or nondisclosure, the reliance requirement is met upon proof that the misrepresentation is a substantial factor in determining the course of conduct which results in loss. Recently, however, courts have adopted the fraud on the market theory, which allows a plaintiff to rely on the integrity of the market rather than requiring direct reliance on the defendant’s conduct. Thus, subjective reliance, on particular misstatements is no longer a distinct element of proof of 10b-5 claims. T.J. Raney & Sons, Inc. v. Fort Cobb, Okla., Irr. Fuel Auth., 717 F.2d 1330, 1332 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984). The fraud on the market theory is based on two assumptions. First, that the market price of a company’s stock reflects all known material information regarding the company and its business, and that material misinformation, will cause the artificial inflation or deflation of the market price of the stock, and second, that an individual relies on the integrity of the market price when dealing in that stock. Thus, by.artificially inflating the price of the stock, the misrepresentations defraud purchasers who rely on the price of the stock as an indication of the stock’s value. The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. In both cases, defendants’ fraudulent statements or omissions cause plaintiffs to purchase stock they would not have purchased absent defendants’ misstatements and/or omissions. At its simplest, the theory requires" }, { "docid": "9657166", "title": "", "text": "the particularity mandated by the PSLRA; Lehman does not join in this argument. A. Loss Causation 1. Applicable Law To maintain a claim for securities fraud, a plaintiff must plead, among other things, both (1) that it relied upon defendant’s allegedly fraudulent conduct in purchasing or selling securities, and (ii) that defendant’s conduct caused, at least in part, plaintiffs loss. These two elements are known, respectively, as “transaction causation” and “loss causation.” “Transaction causation is generally understood as reliance.” Under settled Supreme Court precedent, a rebuttable presumption of transaction causation may be established under the “fraud on the market” theory, even where a plaintiff was unaware of the fraudulent conduct at the time of the purchase or sale. The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Pleading that defendants perpetrated a fraud on the market, therefore, fulfills a plaintiffs transaction causation pleading requirement. Loss causation, on the other hand, refers to the requirement that a plaintiff demonstrate that the fraudulent scheme caused her loss. In the case of 10b-5 actions for material misstatements or omissions, loss causation generally requires a plaintiff to show that her investments would not have lost value if the facts that defendant misrepresented or omitted had been known. In Suez Equity Investors, L.P. v. Toronto-Dominion Bank, the Second Circuit held that plaintiffs could plead causation in securities fraud cases by alleging: both that [Plaintiffs] would not have entered the transaction\" but for the misrepresentations [ie., transaction causation] and that the defendants’ misrepresentations induced a disparity between the transaction price and the true “investment quality” of the securities at the time of transaction [ie., loss causation]. Thus, as" }, { "docid": "13164961", "title": "", "text": "prohibit fraudulent acts committed in connection with securities transactions. Section 10(b) of the 1934 Act provides in pertinent part: It shall be unlawful for any person, directly or indirectly, ... (b) To use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j(b) (2006). Rule 10b-5, in turn, provides in part: It shall be unlawful for any person, directly or indirectly, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5 (2006). To state a claim under Rule 10b-5, a plaintiff must establish: (1) the defendant made a material misrepresentation or omission; (2) in connection with the purchase or sale of a security; (3) the defendant acted with scienter, that is, with the intent to defraud or recklessness; (4) the plaintiff relied on the misleading statements; and (5) the plaintiff suffered damages as a result of his reliance. Adams, 340 F.3d at 1095 (citing Grossman, 120 F.3d at 1118). No Defendants dispute that the alleged statements and omissions were made in connection with the purchase or sale of securities. Further, where, as in the instant case, a claim is based on the “fraud on the market” theory, an investor’s reliance on public material misrepresentation is presumed. Basic, Inc. v. Levinson, 485 U.S. 224, 247, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). Thus, in assessing the sufficiency of Plaintiffs complaint, this court focuses on whether Plaintiff adequately alleges that: (1) Red Robin made one" }, { "docid": "1221213", "title": "", "text": "that is needed, for \"[m]aintainability may be determined by the court on the basis of the pleadings if sufficient facts are set forth, but ordinarily the determination should be predicated on more information than the pleadings will provide____ The parties should be afforded an opportunity to present evidence on the maintainability of a class action.” Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir.1974). . To make out a violation of Rule 1 Ob-5, a plaintiff needs to establish the following elements: (a) a misrepresentation or omission by the defendant; (b) that the misrepresentation or omission related to a material fact; (c) a purchase or sale of a security in connection with the fraudulent device; (d) scienter on the part of the defendant; (e) justifiable reliance by the plaintiff on the defendant’s statements, or fraud on the market; and (f) damages resulting from the misrepresentation or omission. See, e.g., Cione v. Gorr, 843 F.Supp. 1199, 1201-02 (N.D.Ohio 1994) (citing Platsis v. E.F. Hutton & Co., 946 F.2d 38, 40 (6th Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1669, 118 L.Ed.2d 389 (1992)). Further, to invoke a presumption of reliance by using what is known as the \"fraud on the market theory”, a plaintiff must also allege that the misrepresentations were public, that the shares were traded on an efficient market, and that shares were traded between the time the misrepresentations were made and the time the truth was revealed. Basic, Inc. v. Levinson, 485 U.S. 224, 248 n. 27, 108 S.Ct. 978, 99 L.Ed.2d 194 (1987). . The Defendants have not disputed that Plaintiffs’ counsel, experienced securities litigators, are competent, and that facet of the test for adequate representation appears to have been met. . I note that Fed.R.Civ.P. 23(c)(1) provides that an order to certify a class \"may be conditional, and may be altered or amended before the decision on the merits.” . This is a consequence of the \"out of pocket” damages rule, which is often used to compute investors’ damages awards in class action securities cases. To compute out of pocket damages requires determining" }, { "docid": "7340231", "title": "", "text": "or securities fraud or violations of the antitrust laws,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (citing Advisory Comm, notes, 1966 amendments), “it does not follow that a court should relax its certification analysis, or presume a requirement for certification is met, merely because a plaintiffs claims fall within one of those substantive categories,” Hydrogen Peroxide, 552 F.3d at 322. Plaintiffs assert claims under § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The elements of a § 10(b) private action are: “(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008). The parties dispute the reliance element of plaintiffs’ claims. Reliance, also known as transaction causation, “establishes that but for the fraudulent misrepresentation, the investor would not have purchased or sold the security.” Newton, 259 F.3d at 172. Reliance may be proven directly, but “[requiring proof of individualized reliance from each member of [a] proposed plaintiff class effectively would [prevent plaintiffs] from proceeding with a class action, since individual issues then would ... overwhelm^ ] the common ones.” Basic, Inc. v. Levinson, 485 U.S. 224, 242, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). If reliance must be individually proven, a proposed class cannot meet the Rule 23(b) predominance requirement. In order to facilitate securities class-actions, the Supreme Court established a rebuttable presumption of class-wide reliance based on the fraud-on-the-market theory. Id. at 245-47, 108 S.Ct. 978. “ ‘The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements. ...’” Id. at 241-42," }, { "docid": "11360132", "title": "", "text": "Rule 10b — 5(b), a plaintiff must ultimately prove (1) a material misrepresentation or omission; (2) scienter; (3) a connection between the purchase or sale of the security and the material misrepresentation or omission; (4) reliance [or “transaction causation” in fraud-on-the-market cases]; (5) economic loss; and (6) loss causation, i.e., causal connection between the material misrepresentation or omission and the plaintiffs actual loss. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 1631, 161 L.Ed.2d 577 (2005). Transaction causation requires a pleading facts showing that “but for” the fraudulent statement or omission the plaintiff would not have entered in the securities transaction at issue, while loss causation requires pleading facts showing that the content of the fraudulent statement or omission was the cause of the plaintiffs actual loss. See, e.g., Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 943 (9th Cir.2005); Leykin v. AT&T Corporation, 423 F.Supp.2d 229, 238-39 (S.D.N.Y.2006); In re Enron Corp. Sec., Derivative and “ERISA\" Litig., 310 F.Supp.2d 819, 830-31 (S.D.Tex.2004) (and cases cited therein). “ ‘Transaction causation’ and ‘reliance’ are virtually synonymous.” In re Mutual Funds Investment Litig., 384 F.Supp.2d 845, 864 (D.Md.2005). The reliance element for claims for compensatory damages under § 10(b) and Rule 10b-5 serves as the causal connection between the defendant’s action and the plaintiffs loss. Basic, Inc. v. Levinson, 485 U.S. 224, 243, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988); Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359 (5th Cir.1987) (“Proof of reliance establishes that the damaged party was induced to act by the defendant’s conduct; it defines the causal link between defendant’s conduct and the plaintiffs decision to buy or sell securities .... It is the generally applied bond between bad conduct and damages.”), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). A district court may not certify a fraud class where individualized proof of reliance must be shown and thus the requirement of predominance of common issues is defeated. Castano, 84 F.3d at 745. The Supreme Court has relaxed the requirement of demonstrating individual reliance on material misrepresentations and omissions" }, { "docid": "22600482", "title": "", "text": "rely on the misstatements. The misstatements may affect the price of the stock, and thus defraud purchasers who rely on the price as an indication of the stock’s value. By artificially inflating the price of the stock, the misrepresentations defraud purchasers who rely on the price as an indication of the stock’s value. The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. In both cases, defendants’ fraudulent statements or omissions cause plaintiffs to purchase stock they would not have purchased absent defendants’ misstatements and/or omissions. Accordingly, we hold that plaintiffs who purchase in an open and developed market need not prove direct reliance on defendants’ misrepresentations, but can satisfy their burden of proof on the element of causation by showing that the defendants made material misrepresentations. If plaintiffs make such a showing, the court will presume that the misrepresentations occasioned an increase in the stock’s value that, in turn, induced the plaintiffs to purchase the stock. The defendants are, of course, free to assert appropriate defenses, including the defenses that the market did not respond to the alleged misrepresentations, and that plaintiffs knew of the falsity of defendants’ representations or would have purchased the stock even if they had known of them. In an open and developed market, the dissemination of material misrepresentations or withholding of material information typically affects the price of the stock, and purchasers generally rely on the price of the stock as a reflection of its value. See In Re LTV Securities Litigation, 88 F.R.D. 134, 145 (N.D.Tex.1980) (Higginbotham, J.). III. Does the “Fraud on the Market” Theory Apply to Rule 10b-5(b) claims? Defendants do not contest the validity of the fraud on the market theory generally, but contend that it ought to be limited to rule 10b-5(a) and (c) claims, and that plaintiffs should retain the burden of establishing direct reliance in rule 10b-5(b) claims. This was the position of the district court. Plaintiffs assert that there is no justification for limiting the theory" }, { "docid": "4949702", "title": "", "text": "who rely on the validity of the market price even if the investors do not directly rely on the misstatements. Basic, 485 U.S. at 241-42, 108 S.Ct. at 988-89, citing Peil v. Speiser, 806 F.2d 1154, 1160 (3d Cir.1986). The fraud on the market theory does not eliminate the traditional requirements of a securities fraud action brought under Rule 10b-5. Plaintiffs must still prove, inter alia, justifiable reliance, materiality, causation and damages. Under the theory, however, reliance on the misleading statements of the defendant is presumed once the plaintiff proves reliance on the market price. Basic, 485 U.S. at 245, 108 S.Ct. at 990. The theory also subsumes the inquiry into materiality, causation and damages. Generally, an omitted fact is material if there is a substantial likelihood that the disclosure of the fact would have been viewed by a reasonable investor as having significantly altered the “total mix” of information made available. TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). In a fraud on the market case, if an allegedly misleading omission could have no effect on the security’s market price, the undisclosed information cannot be material. Similarly, if a statement or omission had no effect on the market price, there can be no causal connection between the statement or omission, and an investor’s losses, and hence no damages. In re Verifone Securities Litigation, 784 F.Supp. 1471, 1479 (N.D.Cal.1992). The Basic Court acknowledged, that the presumption raised by the fraud on the market theory could be rebutted by “any showing that severs the link between the alleged misrepresentation and * * * the price received (or paid) by the plaintiff.” Basic, 485 U.S. at 248, 108 S.Ct. at 992. The Court suggested that if a defendant could show that “market makers” were privy to the truth, and thus that the market price was not affected by the misrepresentations, the causal connection would be broken and the basis for finding that fraud had been transmitted through the market price would be gone. “Similarly, if, despite [a defendant’s] allegedly fraudulent attempt to" }, { "docid": "13164962", "title": "", "text": "connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5 (2006). To state a claim under Rule 10b-5, a plaintiff must establish: (1) the defendant made a material misrepresentation or omission; (2) in connection with the purchase or sale of a security; (3) the defendant acted with scienter, that is, with the intent to defraud or recklessness; (4) the plaintiff relied on the misleading statements; and (5) the plaintiff suffered damages as a result of his reliance. Adams, 340 F.3d at 1095 (citing Grossman, 120 F.3d at 1118). No Defendants dispute that the alleged statements and omissions were made in connection with the purchase or sale of securities. Further, where, as in the instant case, a claim is based on the “fraud on the market” theory, an investor’s reliance on public material misrepresentation is presumed. Basic, Inc. v. Levinson, 485 U.S. 224, 247, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). Thus, in assessing the sufficiency of Plaintiffs complaint, this court focuses on whether Plaintiff adequately alleges that: (1) Red Robin made one or more misleading statements or omissions of material fact; and (2) the statements or omissions were made with the requisite scien-ter. i. Material Misrepresentations A statement or omission is material only if a reasonable investor would consider it important in determining whether to buy or sell stock. Grossman, 120 F.3d at 1119 (citations omitted). Whether. the information is material depends on other information already available to the market; unless the statement or omission “significantly altered the ‘total mix’ of information’ available, it will be considered immaterial.” Id. (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 [1976]). The gravamen of Plaintiffs fraud claim is based on the following allegedly materially false and misleading statements or omissions: (1) during the Class Period, Red Robin repeatedly represented in public filings and press releases that management had evaluated the Company’s disclosure procedures and financial reporting controls and found them to be effective, even though the Company twice disclosed that its procedures had been significantly deficient; (2) the Company’s 2005 proxy," }, { "docid": "18070628", "title": "", "text": "do so, did fully disclose the allegedly concealed problems. In addition, the defendants argue, that they are entitled to summary judgment because the plaintiffs cannot establish'loss-causation. -v .- To prevail on a Section 10(b) and Rule 10b-5 claim, the plaintiffs müst prove six elements: - . • (1) a material misrepresentation (or omission); (2) scienter, i.e., a wrongful state of mind; (3) a connection with the purchase or sale of a security; (4) reliance, often referred,to in cases involving public securities markets (fraud-on-the-market cases) . as “transaction causation;.. (5) economic loss; and (6) “loss causation,” i.e., a causal connection between the material misrepresentation and the loss. - ■ Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (internal citations omitted). - . The court concludes that, even if - the defendants had a duty to disclose, the plaintiffs cannot show an actionable misrepresentation or omission-, and in addition, that the plaintiffs cannot establish loss causation.-- ■ . - A,. Duty to Disclose The defendants argue that there is no evidence that their statements about the benefits of -the Worldwide Restructuring were false and also that théir statements about the‘benefits of the Worldwide Restructuring did- not create a duty to disclose information about the CBO Reorganization. With respect to the defendants’ argument concerning a duty to disclose, “a duty to update opinions and projections máy arise if the original opinions or projections have become misleading as the result of intervening events.” In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993). , But a corporation is not required to disclose a fact merely because a reasonable investor would very much like to know that fact. Rather, an omission is actionable under the securities laws only when the corporation is subject to a duty to disclose the omitted facts: As Time'Warner pointedly reminds us, we have not only emphasized the importance of ascertaining a duty to disclose when omissions are at issue but have also drawii a distinction between the concepts of a duty to disclose and materiality. It appears, however, that" }, { "docid": "5088157", "title": "", "text": "by the final disposition of the case. See id. 1. Predominance Requirement The Predominance Requirement is a more demanding standard than the Commonality Requirement and is satisfied if the “resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.” Id. (citing Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.2002)). The Predominance Requirement is “readily met in certain cases alleging ... securities fraud.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); see also Vivendi, 242 F.R.D. at 90. For Plaintiffs to prevail on their claim under § 10(b) at trial, all members of the Proposed Class must similarly establish: (1) a material misrepresentation or omission by Defendants; (2) scienter on the part of Defendants; (3) a connection between the misrepresentation or omission and each Proposed Class member’s purchase or sale of a security; (4) each Proposed Class member’s reliance on the misrepresentation or omission; (5) economic loss; and (6) a causal connection between the material misrepresentation and the loss. See Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627,161 L.Ed.2d 577 (2005). Defendants argue that the Proposed Class should not be certified because individualized questions predominate, particularly whether the respective Plaintiffs relied on the alleged misstatements and omissions. Plaintiffs counter that, to establish reliance, they intend to put forward a fraud-on-the-market theory (the “Fraud Theory”), which is “based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business,” and thus, “[m]isleading statements will ... defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.” Basic Inc. v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (citation and quotation marks omitted). To establish the Fraud Theory, Plaintiffs must make “some showing,” DeMarco v. Robertson Stephens Inc., 228 F.R.D. 468," }, { "docid": "7116392", "title": "", "text": "market manipulation pursuant to section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder, and (2) a claim for material misstatements and omissions, also under section 10(b) and Rule 10b-5. II. LEGAL STANDARD The issue raised here is whether bare allegations that a defendant artificially inflated the price of a security suffice to plead loss causation under a “fraud on the market” theory. This question highlights an important circuit split in the pleading of securities fraud. A. Pleading Causation in a Securities Fraud Claim To maintain a claim for securities fraud, a plaintiff must plead, among other things, both (1) that it relied upon defendant’s allegedly fraudulent conduct in purchasing or selling securities, and (ii) that defendant’s conduct caused, at least in part, plaintiffs loss. These two elements are known, respectively, as “transaction causation” and “loss causation.” “Transaction causation is generally understood as reliance.” Under settled Supreme Court precedent, a rebuttable presumption of transaction causation may be established under the “fraud on the market” theory, even where a plaintiff was unaware of the fraudulent conduct at the time of the purchase or sale. The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Pleading the applicability of the fraud on the market theory, therefore, fulfills a plaintiffs transaction causation pleading requirement. Loss causation, on the other hand, refers to the requirement that a plaintiff demonstrate that the fraudulent scheme caused her loss. In the case of 10b-5 actions for material misstatements or omissions, loss causation generally requires a plaintiff to show that her investments would not have lost value if the facts that defendant misrepresented or omitted had been known. As noted" }, { "docid": "7602585", "title": "", "text": "for its proprietary brands”; and “[t]he financial strength of the company continues to be excellent ... and the company continued to generate excellent returns for stockholders.” Cooper Tire’s strong performance ended on June 7, when it announced that it expected second quarter sales and earnings to fall short of the prior year’s results. Defendant Gorr stated that Cooper “knew that meeting the prior year exceptional sales and earnings would be a challenge ... [h] owe ver, with only one month remaining in the quarter we are not apt to meet that goal.” Cooper Tire also announced that: [t]he industry is experiencing a general softness in demand for replacement tires. Demand for our replacement tire products has been mixed, but trending weaknesses seem to echo the general industry. Uncertainty exists regarding replacement tire demand for the remainder of the year as the consumer seems concerned regarding overall economic conditions. Subsequently, the share price of Cooper Tire stock fell 24%. This lawsuit followed. Plaintiff does not take issue with any of the statements made by the defendants concerning Cooper Tire’s past performance, and the Court will assume their veracity. Rather, plaintiff argues that these factual representations of past success coupled with general predictions of future performance constituted misrepresentations and that defendants omitted facts known to them that would have more accurately portrayed Cooper Tire’s prospects. This Court disagrees and, for the reasons that follow, dismisses all three of plaintiffs claims. The elements of a federal securities claim are fairly well settled. To establish a Rule 10b-5 violation the plaintiff must prove (a) a misrepresentation or omission by the defendant; (b) that misrepresentation or omission was material; (c) a purchase or sale of a security in connection with the fraudulent device; (d) scienter on the part of the defendant; (e) justifiable reliance by the plaintiff on the defendants’ statements, or fraud on the market; and (f) damages that were causally related to the misrepresentation or omission. Platsis v. E.F. Hutton & Co., 946 F.2d 38, 40 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1669, 118 L.Ed.2d 389 (1992). Both plaintiff and" }, { "docid": "16697046", "title": "", "text": "Plaintiffs therefore have alleged that GTI and DTT made materially false statements or omitted a material fact in connection with the purchase and sale of securities with scienter. Having pled the first three elements of a claim under 10(b) — that defendants made material misrepresentations or omissions with scienter in connection with the purchase or sale of securities — the next issue is whether plaintiffs adequately allege causation. IV. Claims under Section 10(b) of the Exchange Act and Rule 10b-5: Causation To plead causation sufficiently under Section 10(b) “a plaintiff must allege both transaction causation, i.e. that but for the fraudulent statement or omission, the plaintiff would not have entered into the transaction; and loss causation, i.e., that the subject of the fraudulent statement or omission was the cause of the actual loss suffered.” DTT and GTI contend that the complaint is deficient in pleading both forms of causation. A. Transaction Causation “[Transaction causation refers to the causal link between the defendant’s misconduct and the plaintiffs decision to buy or sell securities. It is established simply by showing that, but for the claimed misrepresentations or omissions, the plaintiff would not have entered into the detrimental securities transaction.” Here, plaintiffs contend that defendants’ fraud artificially inflated the price of Par-malat securities and that they would not have bought Parmalat stock or bonds had they known of its true financial condition. While, they do not claim to have relied on particular misstatements or omissions, they argue that the complaint adequately alleges transaction causation for two reasons. They are correct. First, reliance for purposes of transaction causation may be presumed where, as here, defendants are alleged to have made material omissions. Insofar as the complaint turns on alleged omissions, this principle alone suffices to plead transaction causation. Second, the fraud-on-the-market doctrine provides a rebuttable presumption that plaintiffs relied on defendants’ misrepresentation or omissions pursuant to the theory that a company’s securities prices in an open and efficient market are determined by all available information. Consequently, “[misleading statements ... defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.”" }, { "docid": "15957284", "title": "", "text": "162 F.R.D. 280 (E.D.Va.1995). All reasonable inferences must be made in favor of the nonmoving party. See In re MicroStrategy, 115 F.Supp.2d at 627 (citing Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992)). A motion to dismiss tests only “the sufficiency of the complaint and, most importantly, does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses.” Id. 2. Section 10(b) of the Securities Exchange Act of 1931, & Federal Rule of Civil Procedure 9(b) To establish liability under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78j(b) (2000), and under Rule 10b-5, 17 C.F.R. § 240.10b-5, a plaintiff must allege “(1) a material misrepresentation (or omission); (2) scienter, ... (3) a connection with the purchase or sale of a security; (4) reliance, often referred to in cases involving public securities markets (fraud-on-the-market cases) as ‘transaction causation[;]’ (5) economic loss; and (6) ... a causal connection between the material misrepresentation and the loss[.]” Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 1631, 161 L.Ed.2d 577 (2005); Phillips v. LCI Int’l, Inc., 190 F.3d 609, 613 (4th Cir.1999) (holding that to allege securities fraud in the Fourth Circuit, a plaintiff must allege that “(1) in connection with a purchase or sale of securities, (2) the defendant made a false statement or omission of material fact (3) with scienter (4) upon which the plaintiff justifiably relied (5) that proximately caused the plaintiff damages.”). See 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5. AVhen proceeding under a fraud on the market theory, a plaintiff need not plead direct reliance or that the fraudulent practice was in connection with a particular sale or purchase of securities. Instead, the plaintiff need only show the means of dissemination and the materiality of the misrepresentation. SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.1968); Miller v. Asensio, 101 F.Supp.2d 395 (D.S.C.2000). In addition to meeting the requirements under Section 10(b), a plaintiff must also meet the requirements of Rule 9(b) of the Federal Rules" }, { "docid": "7602587", "title": "", "text": "defendants make numerous arguments and cite an impressive array of cases in support of their respective positions, but the Court finds the question of the materiality of the pleaded statements dispositive in the case at bar. However, before proceeding to the materiality issue, a brief discussion of fraud on the market is warranted. There is a certain degree of overlap between the two concepts, and there is apparently some confusion as to what standards are controlling. In particular, defendants argue that the “market makers” or professional investors are the appropriate benchmark for determining materiality in cases that proceed under the fraud on the market theory. Defendants misread Basic, Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), however, and confuse materiality with fraud on the market. Fraud on the market is a legal mechanism which functions as a substitute for reliance in securities fraud cases. It is particularly useful to plaintiffs in securities class actions, where it would be inconvenient, if not impossible, for the plaintiffs to prove actual reliance on the alleged misrepresentations or omissions. Embraced by the Supreme Court in Basic, fraud on the market theory assumes a causal connection between the alleged fraud and the price of the stock at the time of purchase. In an impersonal, developed and efficient market where a buyer relies on market price integrity, it is presumed that the fraudulent information is transmitted to the buyer in the form of an inflated purchase price. Fraud on the market thus creates the presumption of reliance. Basic, 485 U.S. at 244, 108 S.Ct. at 990. The defendant can rebut this presumption by showing that the “market makers” or professional investors were not taken in by the misrepresentation. Id. at 248, 108 S.Ct. at 992. If the market makers were not deceived, then the misrepresentation would have no effect on the share price, and there would be no “fraud on the market.” The use of the “market maker” in rebutting the fraud on the market presumption can be contrasted with the relevant audience used in determining materiality: the reasonable investor. In" }, { "docid": "19352990", "title": "", "text": "237, 61 S.Ct. 179, 85 L.Ed. 139 (1940). III. Section 10(b) of the Securities Exchange Act forbids (1) the “use or employfment of] ... any manipulative or deceptive device or contrivance,” (2) “in connection with the purchase or sale of any security,” and (3) “in contravention of [SEC] rules and regulations.” 15 U.S.C. § 78j(b) (2006). SEC regulations, in turn, make it unlawful “[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading” in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5(b) (2006) (“Rule 10b-5”). The Supreme Court has identified the six required elements of a Securities Exchange Act § 10(b) private damages action: (1) a material misrepresentation (or omission); (2) scienter, i.e., a wrongful state of mind; (3) a connection with the purchase or sale of a security; (4) reliance, often referred to in cases involving public securities markets (fraud-on-the-market cases) as “transaction causation”; (5) economic loss; and (6) “loss causation,” ie., a causal connection between the material misrepresentation and the loss. Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (citations omitted). See also In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 275 (3d Cir.2006). The common law loss causation element is codified as a requirement in the Private Securities Litigation Reform Act (“PSLRA”): “the plaintiff shall have the burden of proving that the act or omission of the defendant ... caused the loss for which the plaintiff seeks to recover damages.” 15 U.S.C. § 78u-4(b)(4) (2006). See also Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 208 n. 15 (3d Cir.2006). A. We have stated that “[u]nder Rule 10b-5 causation is two-pronged.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 172 (3d Cir.2001). A plaintiff must show both: (1) “transaction causation” (or “reliance”), i.e., that but for the fraudulent misrepresentation or omission, the investor would not have purchased or sold" }, { "docid": "7602586", "title": "", "text": "concerning Cooper Tire’s past performance, and the Court will assume their veracity. Rather, plaintiff argues that these factual representations of past success coupled with general predictions of future performance constituted misrepresentations and that defendants omitted facts known to them that would have more accurately portrayed Cooper Tire’s prospects. This Court disagrees and, for the reasons that follow, dismisses all three of plaintiffs claims. The elements of a federal securities claim are fairly well settled. To establish a Rule 10b-5 violation the plaintiff must prove (a) a misrepresentation or omission by the defendant; (b) that misrepresentation or omission was material; (c) a purchase or sale of a security in connection with the fraudulent device; (d) scienter on the part of the defendant; (e) justifiable reliance by the plaintiff on the defendants’ statements, or fraud on the market; and (f) damages that were causally related to the misrepresentation or omission. Platsis v. E.F. Hutton & Co., 946 F.2d 38, 40 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1669, 118 L.Ed.2d 389 (1992). Both plaintiff and defendants make numerous arguments and cite an impressive array of cases in support of their respective positions, but the Court finds the question of the materiality of the pleaded statements dispositive in the case at bar. However, before proceeding to the materiality issue, a brief discussion of fraud on the market is warranted. There is a certain degree of overlap between the two concepts, and there is apparently some confusion as to what standards are controlling. In particular, defendants argue that the “market makers” or professional investors are the appropriate benchmark for determining materiality in cases that proceed under the fraud on the market theory. Defendants misread Basic, Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), however, and confuse materiality with fraud on the market. Fraud on the market is a legal mechanism which functions as a substitute for reliance in securities fraud cases. It is particularly useful to plaintiffs in securities class actions, where it would be inconvenient, if not impossible, for the plaintiffs to prove actual reliance on" }, { "docid": "11360131", "title": "", "text": "Inc., 259 F.3d 154, 176 (3d Cir.2001) (“Presuming reliance class-wide is proper when the material nondisclosure is part of a common course of conduct.”); Schwartz v. TXU Corp., No. 3:02-CV-2243-K, et al., 2005 WL 3148350, *15 (N.D.Tex. Nov.8, 2005) (and cases cited therein). Moreover, the Supreme Court has observed, “Predominance is a test readily met in certain cases alleging ... securities fraud .... ” Amchem, 521 U.S. at 624, 117 S.Ct. 2231. Nevertheless, as discussed supra, in recent years several federal Courts of Appeals, including the Fifth Circuit, have required at the class certification stage particularized analysis of the issue of an efficient market, a requirement to trigger a fraud-on-the-market presumption of reliance for claims under section 10(b) and Rule 10b-5. See generally Brian E. Pas-tuszenki, Inez H. Friedman-Boyce, and Goodwin Procter, Back to Basic — Challenging the Application of the Efficient Market Hypothesis in Federal Securities Lawsuits, SK080 ALI-ABA 907, 911, 925-32 (Apr. 28-29, 2005). a. Affiliated Ute and/or Fraud-on-the-Market Presumptions for Section 10(b)/Rule 10b-5 Claims To establish a claim under § 10(b) and Rule 10b — 5(b), a plaintiff must ultimately prove (1) a material misrepresentation or omission; (2) scienter; (3) a connection between the purchase or sale of the security and the material misrepresentation or omission; (4) reliance [or “transaction causation” in fraud-on-the-market cases]; (5) economic loss; and (6) loss causation, i.e., causal connection between the material misrepresentation or omission and the plaintiffs actual loss. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 1631, 161 L.Ed.2d 577 (2005). Transaction causation requires a pleading facts showing that “but for” the fraudulent statement or omission the plaintiff would not have entered in the securities transaction at issue, while loss causation requires pleading facts showing that the content of the fraudulent statement or omission was the cause of the plaintiffs actual loss. See, e.g., Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 943 (9th Cir.2005); Leykin v. AT&T Corporation, 423 F.Supp.2d 229, 238-39 (S.D.N.Y.2006); In re Enron Corp. Sec., Derivative and “ERISA\" Litig., 310 F.Supp.2d 819, 830-31 (S.D.Tex.2004) (and cases cited therein). “ ‘Transaction" }, { "docid": "18250773", "title": "", "text": "defraud, ... (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c)To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5. In a securities fraud action brought pursuant to Section 10(b) and Rule 10b-5, the basic elements to be alleged by a plaintiff are: (1) a material misrepresentation or omission by the defendant; (2) scienter, i.e., a wrongful state of mind on the part of the defendant; (3) in connection with the purchase or sale of a security; (4) reliance, often referred to in fraud-on-the-market cases as “transaction causation;” (5) economic loss; and (6) “loss causation,” i.e., a causal connection between the material misrepresentation and the loss. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 1631, 161 L.Ed.2d 577 (2005). Before we address the question of whether the Second Amended Complaint satisfies each of these elements, we digress to consider two bodies of law which pertain to the allegations therein, the fraud-on-the-market doctrine, and legal theories which may provide some protection for statements which might otherwise be actionable as fraudulent misrepresentations or omissions. B. Fraud-on-the-Marhet Under traditional securities fraud analysis, the plaintiff was required to prove that he purchased or sold securities in reliance on the defendant’s misrepresentations, i.e., that he was aware of and directly misled by a specific representa tion. See Semerenko v. Cendant Corp., 223 F.3d 165, 178 (3d Cir.2000). In recent years, however, courts have applied a “fraud-on-the-market” doctrine to the- sale and purchase of securities traded on an efficient open market where face-to-face transactions are rare. See Basic, Inc. v. Levinson, 485 U.S. 224, 241-243, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988); Semerenko, id. Under this theory, a plaintiff is entitled to three presumptions: (1) the market price of the security incorporated the alleged'" } ]

[ { "docid": "13731467", "title": "", "text": "lead used in the United States.... [This brief overview demonstrates the secondary lead smelting industry] is a most vital industry not only to our economy but also to [our]' environment.... Without the industry, over 70,000,000 contaminated batteries would be scattered throughout our country annually. [Nevertheless, the heart of this industry centers around the handling of hazardous materials. Exempting the industry from regulation cannot be justified on the theory that its contribution to resolving our environmental problems outweighs the environmental harm caused by its operations.] 2. Factual and Procedural Background Against this industry backdrop the present case unfolds, spanning nearly, a decade of interaction between the .Environmental Protection Agency (“EPA”), the Alabama Department of Environmental Management (“ADEM”) and Interstate Lead Company, Inc. (“ILCO”). The voluminous facts are very briefly set forth. ILCO owned and operated a secondary lead smelting facility in Leeds, Alabama, from the 1960’s until operations ceased in 1992. As such, it was one of the 20 smelters remaining in the country which reclaimed spent batteries. In 1986 ILCO reclaimed over 2,500,000 batteries, or about 5% of those reclaimed in the United States. Diego Maf-fei is the president and majority shareholder of ILCO. ILCO purchased batteries from various suppliers and placed them in a reclamation process. Incoming batteries were cracked open and drained of sulfuric acid. The rubber or black plastic battery boxes were chipped and washed to remove lead particles. The lead battery components known as “plates and groups” were then removed from the broken batteries and run through ILCO’s smelting process to produce lead ingots for sale. The operation produced several waste products which were the subject of litigation in the district court: waste acid, wastewater treatment sludge, broken battery casings or “chips,” and emission control dust and blast slag from the smelting process. EPA asserted, and continues to argue on appeal, that the reclaimed lead plates and groups were also waste products. The defendants viewed the plates and groups as raw materials essential to the lead recovery industry. EPA and ADEM initiated this case as an enforcement action against ILCO and its president, Diego Maffei, seeking" } ]

[ { "docid": "3288326", "title": "", "text": "dial statute which operates on principles of strict liability. Stevens Creek, 915 F.2d at 1357. We have consistently applied it to acts creating contamination far before CERCLA was enacted in 1980. See, e.g., Jones-Hamilton Co. v. Beazer Materials & Services, 973 F.2d 688, 691 (9th Cir.1992) (Jones-Hamilton) (conduct occurring starting in 1970); ASARCO, 24 F.3d at 1571 (conduct occurring in 1978); Stevens Creek, 915 F.2d at 1356 (conduct occurring in 1963). Because the CERCLA liability scheme is generally unconcerned about whether a responsible party had notice at the time the contamination occurred that it would later be required to pay the costs of clean up, it is appropriate to apply current SWDA regulations in construing section 107(a)(3) regardless of when the acts of contamination occurred. Turning then to the regulations, they define solid waste as any discarded material which is “[a]bandoned ... [r]ecycled ... or ... inherently wastelike.” 40 C.F.R. § 261.2(a)(2) (1993). However, an exception explains that certain materials to be recycled are not solid waste. “Materials are not solid wastes when they can be shown to be recycled by being: (i) Used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed.” 40 C.F.R. § 261.2(e) (1993). The regulations define reclamation: “A material is ‘reclaimed’ if it is processed to recover a usable product, or if it is regenerated. Examples are recovery of lead values from spent batteries and regeneration of spent solvents.” 40 C.F.R. § 261.1(c)(4) (1993) (emphasis added). Thus, under the regulations, General’s spent batteries would clearly be defined as waste. Since they were “reclaimed,” they would not fall under the exception that removes some reprocessed recycled material from the definition -of waste. We are convinced by the Eleventh Circuit’s persuasive discussion in United States v. ILCO Inc., 996 F.2d 1126, 1131 (11th Cir.1993), that SWDA regulations reasonably classify lead components from spent batteries as waste. Further support for our holding emerges as we look more closely at the details of the battery recycling procedure. An inescapable fact is that the leftover battery casings must be disposed" }, { "docid": "12729324", "title": "", "text": "as to neutralize such waste or so as to render such waste nonhazardous ....\" 42 U.S.C. § 6903(34). Solid waste is defined as \"any garbage, refuse, sludge ... and other discarded material”. 42 U.S.C. § 6903(27). In United States v. ILCO, Inc., 996 F.2d 1126 (11th Cir.1993), the court decided the question of whether lead parts reclaimed from spent batteries for recycling purposes were exempt from regulation under RCRA. The court concluded that the lead falls within the law governing the storage, disposal and treatment of hazardous waste. 996 F.2d at 1130. . Other defenses include the innocent purchaser defense, Section 101(35); security interest holders defense, Section 101(20)(A); common carrier exclusion, Section 101(20)(B); application of pesticides done pursuant to FIFRA, Section 107(i); and those whose releases were federally permitted, Section 101(10). . SEC. 127 RECYCLING TRANSACTIONS, a. LIABILITY CLARIFICATION. 1. As provided in subsections (b), (c), (d), and (e), a person who arranged for recy cling of recyclable material shall not be liable under sections 107(a)(3) or section 107(a)(4) with respect to such material. Section 127(a)(1). . These exemptions are provided in Sections 127(b) — (e), and exclusions from these exemptions are set forth in Section 127(0- Persons who arranged for recycling under 127(b) — (e), may still be held liable under CERCLA 107(a)(3) or 107(a)(4) if the party filing an action shows that they fall within one of the exclusions of Section 127(f). . The two sections at issue here are Sections 127(d) and (e), which address transactions involving scrap metal and batteries which applies to the \"scrap battery” and \"dirty mercury” transactions in this action. As Section 127 pertains to batteries, \"recyclable material” includes spent lead-acid, nickel-cadmium and other types of batteries, and in some cases, such batteries are \"arrangements for recycling\" and exempt from CERCLA. Transactions involving scrap metal are covered in Section 127(d), which provides that, (1)Transactions involving scrap metal shall be deemed to be arranging for recycling if the person who arranged for the transaction (by selling recyclable material or otherwise arranging for the recycling of recyclable material) can demonstrate by a preponderance of the" }, { "docid": "22187045", "title": "", "text": "v. ILCO, 996 F.2d 1126 (11th Cir.1993). In ILCO, a lead smelting company (“Interstate Lead”) producing ingots from lead plates of recycled automobile batteries challenged EPA’s regulation of the plates. Interstate Lead argued that, because it had never disposed of the lead plates, EPA could not regulate the lead plates as “discarded material” under 42 U.S.C. § 6903(27). The Eleventh Circuit disagreed, reasoning: The lead plates and groups are, no doubt, valuable feedstock for a smelting process. Nevertheless, EPA, with congressional authority, promulgated regulations that classify these materials as ‘discarded solid waste.’ Somebody has discarded the battery in which these components are found. This fact does not change just because a reclaimer has purchased or finds value in the components. Id. at 1131. Considering these extra-circuit cases to be persuasive in identifying relevant considerations bearing on whether grass residue is “solid waste” under RCRA, we will also evaluate: (1) whether the material is “destined for beneficial reuse or recycling in a continuous process by the generating industry itself,” AMC I, 824 F.2d at 1186; (2) whether the materials are being actively reused, or whether they merely have the potential of being reused, AMC II, 907 F.2d at 1186; (3) whether the materials are being reused by its original owner, as opposed to use by a salvager or reclaimer, ILCO, 996 F.2d at 1131. We turn to the evidence submitted by the parties to the district court. The Growers presented evidence that they do not discard the grass residue, but rather reuse grass residue in a continuous process of growing Kentucky bluegrass. This reuse generates two primary benefits to the Growers: returning nutrients to bluegrass fields and facilitating the open burning process. The Growers presented evidence at the preliminary injunction hearing showing that grass residue contains nutrients that are beneficial to bluegrass fields when returned to soil. Dr. Glen Murray, the Growers’ expert on growing Kentucky blue-grass in the northern Idaho area, testified that grass residue contributes recycled nutrients and can act as a fertilizer to bluegrass fields. Karl Felgenhauer, a Washington bluegrass fanner, also testified that grass residue contains such" }, { "docid": "3288327", "title": "", "text": "be shown to be recycled by being: (i) Used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed.” 40 C.F.R. § 261.2(e) (1993). The regulations define reclamation: “A material is ‘reclaimed’ if it is processed to recover a usable product, or if it is regenerated. Examples are recovery of lead values from spent batteries and regeneration of spent solvents.” 40 C.F.R. § 261.1(c)(4) (1993) (emphasis added). Thus, under the regulations, General’s spent batteries would clearly be defined as waste. Since they were “reclaimed,” they would not fall under the exception that removes some reprocessed recycled material from the definition -of waste. We are convinced by the Eleventh Circuit’s persuasive discussion in United States v. ILCO Inc., 996 F.2d 1126, 1131 (11th Cir.1993), that SWDA regulations reasonably classify lead components from spent batteries as waste. Further support for our holding emerges as we look more closely at the details of the battery recycling procedure. An inescapable fact is that the leftover battery casings must be disposed of. The battery casings, like the slag in ASARCO, but unlike the lead plates within the casings, were not a subject of recycling. They retained their character as waste throughout and would have to be “gotten rid of,” either by General, which could have cracked the batteries itself before selling the scrap lead, or as was the case here, by Kirk after it bought the entire battery. General cannot escape having the battery casings defined as a discarded material simply by selling the battery to another party who then disposed of the casings. General argues that it did not “arrange” to dispose of the batteries because it did not control the eventual disposition of their remnants. This argument is precluded by our holding in ASARCO. ASARCO was not the party directly responsible for placing the slag at the logyards or at the landfills where it contaminated the ground. Rather, a middleman sold the slag to the logyards, and the logyards themselves arranged to have the slag hauled to the landfill. 24 F.3d at 1570-71. We" }, { "docid": "13731466", "title": "", "text": "were themselves a major source of pollution; surface water run-off and process water discharged by the smelters created very real health-threatening problems; on-site and off-site storage or disposition of waste became an increasing risk to the quality of life; and even the air was dangerously polluted by emissions from the smelters. [In response to these problems] all levels of government began to amend existing laws and to enact new laws and regulations placing much greater controls over ownership and operation of such smelters. Compliance with these new environmental laws and regulations ... placed such a financial burden on the operation of secondary lead smelters that about 60% of the smelters operating in 1976 were out of business by 1986, and the approximately 20 smelters remaining were reclaiming only about 70% .. [of all discarded batteries.] Thus in 1986 only 55,-000,000 of the available 70,000,000 batteries were reclaimed, leaving the 15,000,000 unreclaimed spent batteries to endanger the health of all persons near the site of their repose. The 55,000,000 reclaimed batteries produced- about 60% of all lead used in the United States.... [This brief overview demonstrates the secondary lead smelting industry] is a most vital industry not only to our economy but also to [our]' environment.... Without the industry, over 70,000,000 contaminated batteries would be scattered throughout our country annually. [Nevertheless, the heart of this industry centers around the handling of hazardous materials. Exempting the industry from regulation cannot be justified on the theory that its contribution to resolving our environmental problems outweighs the environmental harm caused by its operations.] 2. Factual and Procedural Background Against this industry backdrop the present case unfolds, spanning nearly, a decade of interaction between the .Environmental Protection Agency (“EPA”), the Alabama Department of Environmental Management (“ADEM”) and Interstate Lead Company, Inc. (“ILCO”). The voluminous facts are very briefly set forth. ILCO owned and operated a secondary lead smelting facility in Leeds, Alabama, from the 1960’s until operations ceased in 1992. As such, it was one of the 20 smelters remaining in the country which reclaimed spent batteries. In 1986 ILCO reclaimed over 2,500,000 batteries, or" }, { "docid": "17030242", "title": "", "text": "Furthermore, the record reflects that USLC never re-sold the whole batteries that it purchased, never sent them out for processing, and never shipped them to other sites. (Bailen depo., August 7, 1995, at 40-41). Rather, as noted, supra, Charles Bailen and others operated the Site as a “battery breaking” operation, which involved “cracking” the batteries and extracting scrap lead from the worthless acid and casings. The acid and lead-contaminated casings then were discarded on the property. In particular, the undisputed evidence establishes that “battery-breaking” involved cutting off battery tops, draining the acid into a pit and grinding the lead-contaminated casings for disposal at the USLC Site. (Id. at 58-75). Based on the evidence before it, the Court concludes that the role of Ace Iron & Metal Company, Inc., in the foregoing transactions constituted arrangements for disposal, as a matter of law. Construing the evidence and all reasonable inferences drawn therefrom in a light most favorable to Ace, the record also supports a reasonable inference that it intended to enter into a transaction that included an arrangement for disposal. In reaching this conclusion, the Court notes that Ace did not sell lead in the form of a raw material. Rather, it sold junk batteries that had to be “cracked” in order for the scrap lead to be extracted from the lead-contaminated casings. “The battery casings ... unlike the lead plates within the casings, were not the subject of recycling.” Catellus Development Corp. v. United States, 34 F.3d 748, 753 (9th Cir.1994). “They retained their character as waste throughout and would have to be ‘gotten rid of,’ either by [Ace], which could have cracked the batteries itself before selling the scrap lead, or as was the case here, by [the United Scrap Lead Company] after it bought the entire battery.” Id. Ace Iron & Metal Company, Inc., “cannot escape having the battery casings defined as a discarded material simply by selling the battery to another party who then disposes of the casings.” Id.; see also Douglas County, Nebraska v. Gould, Inc., 871 F.Snpp. 1242, 1247 (D.Neb.1994) (“In selling whole spent batteries, the" }, { "docid": "13731469", "title": "", "text": "an injunction to curtail ongoing violations of environmental laws and regulations at ILCO’s plant in Leeds and seeking penalties for past violations. The amended complaint contained six claims, but two settled during trial. Of the four remaining claims, EPA first alleged ILCO violated the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387, by improperly. discharging waste water at or near the plant site in violation of its NPDES permit, and subsequent to March 1984 without any permit. The second and third claims concerned the treatment, storage and disposal of hazardous wastes since 1980 in violation of the Resource Conservation and Recovery Act (“RCRA”), as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901-92L In the second claim EPA charged ILCO with maintaining storage areas, an incinerator and a treatment tank, all containing hazardous waste, in violation of regulations applicable to 'their status as an interim facility and maintaining other storage facilities and a landfill without the requisite permit. The third claim encompassed the same RCRA violation, alleging that the facility permitted releases of hazardous waste into the environment. The fourth claim focused upon alleged violations of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERC-LA”), 42 U.S.C. §§ 9601-75, at a place known as “the Church of God site,” located about six miles north of the plant. ILCO was charged with dumping hazardous waste in a ravine behind the Church of God, which released or threatened to release hazardous substances into the environment. Consequently, EPA sought recovery for the excavation costs incurred in removing the waste.' This appeal arises from a finding of liability against ILCO and Maffei under the CWA and the RCRA, and a judgment awarded to EPA for cleanup costs. The district court ordered the defendants (1) to pay a $3.5 million penalty for violations of RCRA, the CWA and state laws, (2) to attain compliance with the laws, and (3) to reimburse the United States $845,033 for prejudgment interest and response costs incurred by EPA in performing a cleanup at the Church of God. The court found the lead plates and" }, { "docid": "2789125", "title": "", "text": "Dev. Corp. v. United States, 34 F.3d 748, 750 (9th Cir.1994)). When the useful product defense is raised, the court must look beyond the defendant’s assertions and “determine whether a transaction in fact involved an arrangement for the disposal of a hazárdous substance.” Douglas County, 871 F.Supp. at 1245, (quoting United States v. Aceto Agric. Chems. Corp. 872 F.2d 1373, 1381 (8th Cir.1989)). “Merely characterizing the transaction as a sale, however, is insufficient to avoid liability.” Prudential, 711 F.Supp. at 1254. “There is no bright line between a sale and a disposal and the determination necessarily turns on a fact-specific inquiry into the nature of the transaction.” Douglas County, 871 F.Supp. at 1245; see also Pneumo, 142 F.3d at 775 (employing a balancing test to determine whether a transaction was for discard of hazardous waste or for sale of valuable materials); Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746 (7th Cir.1993) (courts look for an intent to dispose). Some courts have found that “lead plates ... reclaimed] from spent batteries fall squarely within the law and regulations governing storage, disposal, and treatment of hazardous waste.” U.S. v. ILCO, 996 F.2d 1126, 1130 (11th Cir.1993) (asserting that spent batteries and their components are subject to regulation by the EPA). However, the issue in this case goes far beyond the holding in ILCO. In that case, the sole issue was whether lead parts were a solid waste regulable under the Resource Conservation and Recovery Act (“RCRA”). Aside from the fact that ILCO was decided under RCRA, it also did not address the useful product defense, as is asserted by Ace in this case. The issue before this Court, although implicating the ILCO holding, further questions whether a sale of such lead plates could lead to CERCLA liability. To resolve that issue, the Court now turns to a fact-specific inquiry about the particulars of the transaction between Ace and Quemetco. 2. Intent Courts have differed in their opinions about whether a party must have intended to arrange for disposal or treatment of a hazardous substance in order to be subject to arranger" }, { "docid": "2789126", "title": "", "text": "law and regulations governing storage, disposal, and treatment of hazardous waste.” U.S. v. ILCO, 996 F.2d 1126, 1130 (11th Cir.1993) (asserting that spent batteries and their components are subject to regulation by the EPA). However, the issue in this case goes far beyond the holding in ILCO. In that case, the sole issue was whether lead parts were a solid waste regulable under the Resource Conservation and Recovery Act (“RCRA”). Aside from the fact that ILCO was decided under RCRA, it also did not address the useful product defense, as is asserted by Ace in this case. The issue before this Court, although implicating the ILCO holding, further questions whether a sale of such lead plates could lead to CERCLA liability. To resolve that issue, the Court now turns to a fact-specific inquiry about the particulars of the transaction between Ace and Quemetco. 2. Intent Courts have differed in their opinions about whether a party must have intended to arrange for disposal or treatment of a hazardous substance in order to be subject to arranger liability. See Chatham Steel Corp. v. Brown, 858 F.Supp. 1130, 1138 (N.D.Fla.1994) (finding that CERCLA is a strict liability statute making the parties’ intent irrelevant); U.S. v. Aceto Agric. Chemicals Corp., 872 F.2d. at 1380 (court disagreed with defendant’s assertion that CERCLA statute required an intent to arrange); but see Amcast, 2 F.3d at 751 (no liability to a shipper who did not intend spillage by common carrier en route to delivery); Pneumo, 142 F.3d at 775; Edward Hines, 685 F.Supp. at 655 (court examined the motivation of the transaction); U.S. v. A & F Materials, 582 F.Supp. 842, 845 (S.D.Ill.1984) (same). The Seventh Circuit however, has interpreted the language “arrange for” as suggesting intentional conduct. In G.J. Leasing Co., Inc. v. Union Elec. Co., the court’s decision was based on the intentions of the parties to the transaction. 54 F.3d 379 (7th Cir.1995) (holding that the sale of a building that contained asbestos insulation, released by the subsequent buyer during metal salvaging operations, was not an arrangement for disposal of a hazardous waste). “Union" }, { "docid": "13731475", "title": "", "text": "processed to recover a usable product, or if it is regenerated. Examples are recovery of lead values from spent batteries-” 40 C.F.R. § 261.1(c)(4) (1992). “Reclaimed material” clearly includes lead values derived from the plates and groups at issue here. Furthermore, these battery components fall within the § 261.1(c)(4) definition of recycled material because ILCO runs the plates and groups through a smelting process to recover a usable product, lead, which is then east into ingots and sold. Thus, having met the definition of “recycled,” the lead components are discarded' material as defined in 40 C.F.R. § 261.2(a)(2). The regulations also specify those recycled materials which are solid wastes. They include “spent materials” that are recycled by “reclamation,” or are “accumulated, stored, or treated before recycling” by reclamation. 40 C.F.R. § 261.2(c) (1992). A “spent material” is “any material that has been used and as a result of contamination- can no longer serve the purpose for which it was produced without processing.” 40 C.F.R. § 261.1(c)(1) (1992). Thus, the applicable regulations are unambiguous with respect to spent lead components used in a recycling process: spent materials “are solid wastes when reclaimed.” 40 C.F.R. § 261.2(c)(3) and Table 1 (1992). ILCO argues that it has never “discarded” the plates and groups and, therefore, the material it recycles is not “solid waste” as defined in RCRA § 6903(27). The lead plates and groups are, no doubt, valuable feedstock for a smelting process. Nevertheless, EPA, with congressional authority,’ promulgated regulations that classify these materials as “discarded solid waste.” Somebody hás discarded the battery in which these components are found. This fact does not change just because a reclaimer has purchased or finds value in the components. The regulations- reflect EPA’s policy decision that spent batteries, including their lead components, became “part of the waste disposal problem,” AMC I, 824 F.2d at 1186, when the original consumer discarded the battery. It is unnecessary to read into the word “discarded” a congressional intent that the waste in question must finally and forever be discarded, as ILCO seems to argue. It is perfectly reasonable for EPA" }, { "docid": "18564132", "title": "", "text": "ORDER HANCOCK, District Judge. On March 18, 1985, plaintiff United States of America (U.S.) filed a complaint against: (1) ILCO, Inc., a/k/a Interstate Lead Company, Inc. (ILCO) — the owner and operator of a secondary lead smelting and lead battery recycling facility in Leeds, Alabama, and also is the debtor in an ongoing Chapter 11 bankruptcy proceeding styled In Re ILCO, Inc., BK-82-04836-S, which proceeding was commenced in the bankruptcy court for this court on August 20, 1982; (2) Diego Maffei (Maffei) — the president and chief operating officer of ILCO; (3) William and Annie Bell Fleming (Flemings) — the owners of the property referred to as the Fleming’s Patio site, which serves as one of ILCO’s off-site disposal grounds; and (4) Leeds Excavating and Paving Company, Inc., (Leeds) — the transporter of ILCO’s “hazardous” wastes to two off-site disposal grounds, the Fleming’s Patio site and a site referred to as the Church of God site. The first three claims of the complaint seek prohibitory injunctive relief against ILCO and Maffei relating to regulatory violations of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA). In summary, the First Claim alleges that defendants ILCO and Maffei have violated the CWA by discharging lead-contaminated wastewater (a) since March, 1984, without a valid National Pollutant Discharge Elimination System (NPDES) permit, (b) at locations not approved of in an earlier issued but now expired permit, (c) with contamination levels above the expired permit’s approved levels, and (d) in violation of the expired federal permit’s reporting requirements. Under 33 U.S.C. § 1319(a)(3), the U.S. seeks to enjoin Maffei and ILCO from continuing to discharge pollutants into the water unless and until these defendants obtain a valid NPDES permit. The Second Claim and Third Claim allege that defendants ILCO and Maffei have violated provisions of the RCRA by: (a) failing to identify certain waste activities and units in ILCO’s November 19, 1980 application seeking qualification as an “interim status” hazardous waste facility, and by maintaining and operating those unidentified units without a permit; (b) violating both state and federal interim status" }, { "docid": "13731476", "title": "", "text": "to spent lead components used in a recycling process: spent materials “are solid wastes when reclaimed.” 40 C.F.R. § 261.2(c)(3) and Table 1 (1992). ILCO argues that it has never “discarded” the plates and groups and, therefore, the material it recycles is not “solid waste” as defined in RCRA § 6903(27). The lead plates and groups are, no doubt, valuable feedstock for a smelting process. Nevertheless, EPA, with congressional authority,’ promulgated regulations that classify these materials as “discarded solid waste.” Somebody hás discarded the battery in which these components are found. This fact does not change just because a reclaimer has purchased or finds value in the components. The regulations- reflect EPA’s policy decision that spent batteries, including their lead components, became “part of the waste disposal problem,” AMC I, 824 F.2d at 1186, when the original consumer discarded the battery. It is unnecessary to read into the word “discarded” a congressional intent that the waste in question must finally and forever be discarded, as ILCO seems to argue. It is perfectly reasonable for EPA to assume Congress meant “discarded once.” Were we to rule otherwise, waste such as these batteries would arguably be exempt from regulation under RCRA merely because they are potentially recyclable. Previously discarded solid waste, although it may at some point be recycled, nonetheless remains solid waste. See American Petroleum, 906 F.2d at 741 (holding that “discarded” material sent by steel mills to a metal recovery facility remained a solid waste in the hands of the metal reeoverer); and American Mining Congress v. EPA, 907 F.2d 1179, 1186-87 (D.C.Cir.1990) (AMC II) (materials awaiting recycling may be classified as “discarded,” whether the materials were discarded by one user and sent to another for recycling, or stored before recycling by the person who initially discarded them in land disposal units). Compare AMC I, 824 F.2d at 1187, n. 14 (used oil collected and recycled by a reclaimer is “discarded” and subject to regulation) with 824 F.2d at 1184, 1190 (“materials retained [by the generating industry] for immediate reuse” or “passing in a continuous stream or flow from one" }, { "docid": "17030277", "title": "", "text": "that Decatur Salvage, Inc.[,] was a customer of United Scrap Lead. Therefore, no genuine issue of material fact exists that Decatur Salvage, Inc.[,] arranged for the treatment or disposal of hazardous substances at the United Scrap Lead Site. (Doc. # 333 at 24) (footnotes with citations omitted). Upon review, the Court concludes that the Government has demonstrated its entitlement to judgment as a matter of law on the issue of this Defendant’s “arranger” liability under CERCLA. Decatur has admitted its sale of automobile and truck batteries to USLC. (Id. at Exh. 5D). The record reflects that USLC never resold the whole batteries that it purchased, never sent them out for processing, and never shipped them to other sites. (Bailen depo., August 7, 1995, at 40-41). Rather, as noted, supra, Charles Bailen and others operated the Site as a “battery breaking” operation, which involved “cracking” the batteries and extracting scrap lead from the worthless acid and casings. The acid and lead-contaminated casings then were discarded on the property. In particular, the undisputed evidence establishes that “battery-breaking” involved cutting off battery tops, draining the acid into a pit and grinding the lead-contaminated cas ings for disposal at the USLC Site. {Id. at 58-75). Based on the evidence before it, the Court concludes that the role of Decatur Salvage, Inc., in the foregoing transactions constituted “arrangements for disposal,” as a matter of law. Construing the evidence and all reasonable inferences drawn therefrom in a light most favorable to Decatur, the only reasonable inference is that it intended to enter into a transaction that included an arrangement for disposal. In reaching this conclusion, the Court notes that Decatur did not sell lead in the form of a raw material. Rather, it sold junk batteries that had to be “cracked” in order for the scrap lead to be extracted from the lead-contaminated casings. “The battery casings ... unlike the lead plates within the casings, were not the subject of recycling.” Catellus, 34 F.3d at 753 (9th Cir.1994). “They retained their character as waste throughout and would have to be ‘gotten rid of,’ either by [Decatur]," }, { "docid": "22187073", "title": "", "text": "cases interpret the meaning of “solid waste” in considering the validity of hazardous waste regulations promulgated by the Environmental Protection Agency (“EPA”). See AMC I, 824 F.2d at 1178 (considering whether the EPA exceeded its regulatory authority by including “in process secondary materials” in its definition of solid waste); American Mining Cong. v. U.S. EPA, 907 F.2d 1179, 1181-82 (D.C.Cir.1990) (AMC II) (considering whether the EPA exceeded its regulatory authority in treating six wastes generated from metal smelting operations as “hazardous” waste); United States v. ILCO, Inc., 996 F.2d 1126, 1130 (11th Cir.1993) (considering whether “lead parts, which have been reclaimed from spent car and truck batteries for recycling purposes, are exempt from[the EPA’s] regulation under RCRA”). Although RCRA defines “solid waste” to cover all types of “discarded materials,” see 42 U.S.C. § 6903(27), the EPA’s RCRA regulations at issue in AMC I, AMC II and ILCO have a special definition of “solid waste,” see 40 C.F.R. § 261.2(a)(1), which “applies only to wastes that also are hazardous for purposes of the regulations implementing Subtitle C of RCRA.” 40 C.F.R. § 261.1(b)(1). Thus, the regulatory definition considered in AMC I, AMC II and ILCO is significantly narrower than the statutory definition at issue here. Accordingly, I do not find these cases persuasive in our determination of whether the post-harvest crop residue has been “discarded.” C. Even if I were to agree with the majority’s conclusion that the extra-circuit cases constitute persuasive authority, Maj. Op. at 1043, I would nonetheless conclude that there is a genuine factual dispute as to whether the post-harvest crop residue has been discarded. I would therefore reverse the summary judgment in favor of the Growers. Relying on the analysis in AMC I, AMC II and ILCO, the majority reasons that as long as the residue “provides benefits for the Growers,” Maj. Op. at 1044, it has not been “discarded” under RCRA. This unnecessarily narrows the definition of “discarded material.” The cases do not support the majority’s proposition that the- mere recognition of some beneficial use negates the fact that materials have been “discarded” under RCRA. The" }, { "docid": "22187044", "title": "", "text": "scope of ‘discarded material’ strains ... the everyday usage of that term.” Id. at 1184. Significant for our purposes, AMC I determined that materials have not contributed to a waste disposal problem where “they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.” Id. at 1186. The D.C. Circuit held that EPA contravened Congress’s intent by attempting to regulate “in-process secondary materials.” Id. at 1193. The D.C. Circuit reached a similar conclusion in Association of Battery Recyclers v. U.S. EPA, 208 F.3d 1047 (D.C.Cir.2000). The issue in Battery Recyclers was whether materials generated and reclaimed within the mineral processing industry could be deemed “solid waste” under RCRA, such that it could be regulated by the EPA. The court held that “at least some of the secondary material EPA seeks to regulate as solid waste is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away.” Id. at 1056. The Eleventh Circuit addressed a variation of this issue in United States v. ILCO, 996 F.2d 1126 (11th Cir.1993). In ILCO, a lead smelting company (“Interstate Lead”) producing ingots from lead plates of recycled automobile batteries challenged EPA’s regulation of the plates. Interstate Lead argued that, because it had never disposed of the lead plates, EPA could not regulate the lead plates as “discarded material” under 42 U.S.C. § 6903(27). The Eleventh Circuit disagreed, reasoning: The lead plates and groups are, no doubt, valuable feedstock for a smelting process. Nevertheless, EPA, with congressional authority, promulgated regulations that classify these materials as ‘discarded solid waste.’ Somebody has discarded the battery in which these components are found. This fact does not change just because a reclaimer has purchased or finds value in the components. Id. at 1131. Considering these extra-circuit cases to be persuasive in identifying relevant considerations bearing on whether grass residue is “solid waste” under RCRA, we will also evaluate: (1) whether the material is “destined for beneficial reuse or recycling in a continuous process by the generating industry itself,” AMC I, 824 F.2d at 1186; (2)" }, { "docid": "13731470", "title": "", "text": "permitted releases of hazardous waste into the environment. The fourth claim focused upon alleged violations of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERC-LA”), 42 U.S.C. §§ 9601-75, at a place known as “the Church of God site,” located about six miles north of the plant. ILCO was charged with dumping hazardous waste in a ravine behind the Church of God, which released or threatened to release hazardous substances into the environment. Consequently, EPA sought recovery for the excavation costs incurred in removing the waste.' This appeal arises from a finding of liability against ILCO and Maffei under the CWA and the RCRA, and a judgment awarded to EPA for cleanup costs. The district court ordered the defendants (1) to pay a $3.5 million penalty for violations of RCRA, the CWA and state laws, (2) to attain compliance with the laws, and (3) to reimburse the United States $845,033 for prejudgment interest and response costs incurred by EPA in performing a cleanup at the Church of God. The court found the lead plates and groups to be solid waste as defined in 40 C.F.R. § 261.2 because they exhibit the characteristic of “Extraction Procedure toxicity” for lead and cadmium as defined in that regulation. However, the court also held the plates and groups at the ILCO facility were not “hazardous waste,” accepting ILCO’s argument that it did not “discard,” but rather purchased the plates and groups as raw materials for the purpose of recovering lead values. EPA and ADEM appeal this ruling. DISCUSSION The sole question of law raised by EPA on appeal is whether lead parts, which have been reclaimed from spent car and truck batteries for recycling purposes, are exempt from regulation under RCRA. The standard of review is de novo. Novak v. Irwin Yacht and Marine Corp., 986 F.2d 468, 470 (11th Cir.1993). Reviewing the interpretive decisions of an administrative agency is a two-step process: If Congress has clearly and directly spoken to the precise question at issue, effect must be given to the expressed intent of Congress. If the court finds the statute silent or" }, { "docid": "2789114", "title": "", "text": "McKinney and -Kirkham, Quemetco, - Inc. (“Quemetco”), owned property under various titles at the contaminated site, now referred to as the “Avanti” site, from 1964 to 1972. McKinney Dep. at 22, 140, 148; Kirkham Dep. at 118. Quemetco and others had used the Avanti property to operate a secondary lead' smelting facility. McKinney Dep. at 21-22. A secondary smelter collects scrap materials containing lead and processes them to produce new usable forms of lead. Id. at 21. Edward L. Puckett, a former employee of the smelter, explained that “smelting” is the process of placing scrap lead in a furnace to recover pure lead, lead-oxide, and other lead alloys. Puckett Dep.-at 190; McKinney Dep. at 21.. In 1972, Quemetco ceased its operations at the Avanti site. • McKinney Dep. at 140, 148. Quemetco was later acquired by Plaintiff, RSR Corporation. Third Am. Compl. ¶ 74. In 1994, the Environmental Protection Agency (“EPA”) found that the Avanti site Quemetco had used and the surrounding residential property were contaminated with lead, a hazardous substance. Admin. Order Pursuant to' § 106(a) of CERCLA & Liability Act of 1980, as Am. 42 U.S.C. § 9606(a) (“Admin. Order”). The EPA directed RSR/Quemetco and others to clean up the site. Id. RSR/Quemetco filed this action in 1995 against Ace and other defendants, seeking contribution to its clean-up costs pursuant to CERCLA. 42 U.S.C. §§ 9607, 9613. The Plaintiffs claim that Ace is a responsible person under CERC-LA because Ace had arranged for the treatment or disposal of hazardous substances at the Avanti site. Third Am. Comp. ¶¶ 7, 24. Ace’s connection to the Avanti site was through a contract with Quemeteo to supply lead plates for the secondary smelter. Ace, an independent battery breaker, contracted with Quemeteo to break spent batteries (used car batteries) for Quemetco’s use in its smelting operations. Kirkham Dep. at 43-47. Under the contract, Quem-eteo collected spent batteries from other sources and delivered them to Ace’s battery-breaking facility. Id. Upon receiving the spent batteries from Quemeteo, as well as from other third party sources, Ace would open them to remove the lead plates" }, { "docid": "13731473", "title": "", "text": "For this reason and those to follow, we find the lead plates and groups that ILCO reclaims from spent batteries fall squarely within the law and regulations governing the storage, disposal and treatment of hazardous waste. The RCRA, as amended, 42 U.S.C. §§ 6901-92k (1988), is a comprehensive environmental statute, which grants EPA authority to regulate solid and hazardous wastes from “cradle-to-grave.” American Petroleum Institute v. EPA 906 F.2d 729, 732 (D.C.Cir.1990). “Congress’ ‘overriding concern’ in enacting RCRA was to establish the framework for a national system to insure the safe management of hazardous waste.” American Mining Congress v. EPA 824 F.2d 1177, 1179 (D.C.Cir.1987) (AMC I). RCRA directs EPA to promulgate regulations establishing a comprehensive management system for hazardous wastes. 42 U.S.C. §§ 6921-39b (1988). Before a material can be designated- and regulated as a “hazardous waste,” it must first be determined to be a “solid waste.” See 42 U.S.C. § 6903(5) (1988). Solid waste includes: any garbage, refuse, sludge from a waste treatment plant, water supply treatment plaiit, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, eommer- cial, mining, and agricultural operations, and from community activities.... 42 U.S.C. § 6903(27) (1988) (emphasis added). 42 U.S.C. § 6921 directs the Administrator of the EPA to identify those Solid-wastes which are “hazardous” and whose management should therefore be governed by RCRA. In particular, § 6921 requires the Administrator both to “promulgate criteria for identifying the characteristics of hazardous waste” and, using these criteria, to list “specific hazardous wastes.” See American Petroleum, 906 F.2d at 733. Pursuant to its authority, EPA has promulgated regulations which specifically address discarded lead-acid batteries. Without clarifying the meaning of “discarded,” Congress defined solid waste as “any discarded material” not otherwise exempted from regulation. EPA has filled the statutory gap by defining “discarded material” as any material which is abandoned, recycled, or inherently wastelike. 40 C.F.R. § 261.2(a)(2) (1992). “Recycled material” refers to, inter alia, spent material which has been reclaimed. 40 C.F.R. § 261.2(c)(3) (1992). A material is “ ‘reclaimed’ if it is" }, { "docid": "13731474", "title": "", "text": "and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, eommer- cial, mining, and agricultural operations, and from community activities.... 42 U.S.C. § 6903(27) (1988) (emphasis added). 42 U.S.C. § 6921 directs the Administrator of the EPA to identify those Solid-wastes which are “hazardous” and whose management should therefore be governed by RCRA. In particular, § 6921 requires the Administrator both to “promulgate criteria for identifying the characteristics of hazardous waste” and, using these criteria, to list “specific hazardous wastes.” See American Petroleum, 906 F.2d at 733. Pursuant to its authority, EPA has promulgated regulations which specifically address discarded lead-acid batteries. Without clarifying the meaning of “discarded,” Congress defined solid waste as “any discarded material” not otherwise exempted from regulation. EPA has filled the statutory gap by defining “discarded material” as any material which is abandoned, recycled, or inherently wastelike. 40 C.F.R. § 261.2(a)(2) (1992). “Recycled material” refers to, inter alia, spent material which has been reclaimed. 40 C.F.R. § 261.2(c)(3) (1992). A material is “ ‘reclaimed’ if it is processed to recover a usable product, or if it is regenerated. Examples are recovery of lead values from spent batteries-” 40 C.F.R. § 261.1(c)(4) (1992). “Reclaimed material” clearly includes lead values derived from the plates and groups at issue here. Furthermore, these battery components fall within the § 261.1(c)(4) definition of recycled material because ILCO runs the plates and groups through a smelting process to recover a usable product, lead, which is then east into ingots and sold. Thus, having met the definition of “recycled,” the lead components are discarded' material as defined in 40 C.F.R. § 261.2(a)(2). The regulations also specify those recycled materials which are solid wastes. They include “spent materials” that are recycled by “reclamation,” or are “accumulated, stored, or treated before recycling” by reclamation. 40 C.F.R. § 261.2(c) (1992). A “spent material” is “any material that has been used and as a result of contamination- can no longer serve the purpose for which it was produced without processing.” 40 C.F.R. § 261.1(c)(1) (1992). Thus, the applicable regulations are unambiguous with respect" }, { "docid": "13731471", "title": "", "text": "groups to be solid waste as defined in 40 C.F.R. § 261.2 because they exhibit the characteristic of “Extraction Procedure toxicity” for lead and cadmium as defined in that regulation. However, the court also held the plates and groups at the ILCO facility were not “hazardous waste,” accepting ILCO’s argument that it did not “discard,” but rather purchased the plates and groups as raw materials for the purpose of recovering lead values. EPA and ADEM appeal this ruling. DISCUSSION The sole question of law raised by EPA on appeal is whether lead parts, which have been reclaimed from spent car and truck batteries for recycling purposes, are exempt from regulation under RCRA. The standard of review is de novo. Novak v. Irwin Yacht and Marine Corp., 986 F.2d 468, 470 (11th Cir.1993). Reviewing the interpretive decisions of an administrative agency is a two-step process: If Congress has clearly and directly spoken to the precise question at issue, effect must be given to the expressed intent of Congress. If the court finds the statute silent or ambiguous with respect to the specific issue, it must ask whether the agency’s regulation is based on a “permissible” or “reasonable” construction of the statute. Chevron USA, Inc. v. National Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). Considerable weight and deference are afforded an agency’s interpretation of a statute entrusted to its administration. Id. at 844, 104 S.Ct. at 2782. Because Congress has not spoken to the precise question at issue, we must decide whether EPA has reasonably construed the RCRA to permit regulation of the recycling of hazardous materials. There is no question that the materials at issue are hazardous; the district court specifically found the plates and groups were “Extraction Procedure toxic” for lead and cadmium. If it is permissible for EPA to determine that “solid waste,” as defined by Congress, includes materials that are recycled, then the lead plates and groups were “hazardous waste” and must be managed accordingly. We conclude that EPA’s regulations are a reasonable exercise of its authority granted by Congress." } ]

[ { "docid": "689366", "title": "", "text": "would succeed at trial on the issue of probable substantial lessening of competition in the southeast as a result of the proposed merger and granted its motion for a preliminary injunction. This decision was subsequently affirmed without opinion by the United States Supreme Court. Similarly, in United States v. Phillips Petroleum Co., 367 F.Supp. 1226 (C.D.Calif. 1973), aff’d., 418 U.S. 906, 94 S.Ct. 3199, 41 L.Ed.2d 1154 (1974), the Government challenged the acquisition by the Phillips Petroleum Company of the Tidewater Oil Company. At the time the complaint was filed, Phillips and Tidewater each engaged in the acquisition of oil and natural gas lands, the production of crude oil and natural gas, the manufacture of refined petroleum products and the transportation and marketing of crude oil and refined petroleum products. The parties stipulated that for the purpose of Section 7 of the Clayton Act the relevant line of commerce was the sale of motor gasoline and that the relevant geographic market was the state of California. At the time of the acquisition Phillips was not selling motor gasoline in California. Tidewater, however, accounted for approximately 6 to 7 percent of total sales in California. Although the district court found that the barriers to entry in the petroleum industry were substantial, it held that Phillips possessed the capability to enter the California market without acquiring Tidewater. Concluding that the industry was already highly concentrated, the district court found the effect of the acquisition may be to substantially lessen competition and, therefore, in violation of Section 7 of the Clayton Act. This decision was subsequently affirmed without opinion by the United States Supreme Court. The decisions analyzed above clearly provide that important factors to consider when determining the impact on competition of a proposed merger include the market shares of the merging firms, industry trends toward concentration, the degree of concentration within the industry, the history of acquisition of the merging firms and the barriers to entry in the industry. Of course, this list is by no means exclusive. Other factors, depending on their relevancy, may be considered as well. For example," } ]

[ { "docid": "15776817", "title": "", "text": "374 U.S. 321, 364, 83 S.Ct. 1715, 1742, 10 L.Ed.2d 915 (1963) (“Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.”); Stanley Works v. FTC, 469 F.2d 498, 500-01 (2d Cir.1972) (combination of firm with 1% and firm with 22-24%), cert. denied, 412 U.S. 928, 93 S.Ct. 2750, 37 L.Ed.2d 155 (1973). Furthermore, the Department of Justice merger guidelines, considered to be “conservative” in the sense of erring on the side of allowing takeovers to proceed, indicate that the Antitrust Division of the Justice Department would probably challenge such a merger. U.S. Dept, of Justice, Merger Guidelines, reprinted in, 2 Trade Reg.Rep. (CCH) ¶ 4490 (1986). The guidelines measure the market concentration thresholds attending horizontal mergers in terms of the Herfindahl-Hirschmann Index (“HHI”). The HHI evaluates market concentration through a formula that accounts for the relative size and distribution of the firms in a particular market. The HHI is simply the sum of the squares of each firm’s market share in the relevant market. This index, which is generally understood to be a rather sensitive barometer of market concentration, increases as the number of firms in the market decreases and as the disparity in size among those firms increases. In most circumstances, mergers resulting in an HHI of less than 1000 will not be challenged. The guidelines view as suspect any merger that will “produce an increase in the HHI of more than 100 points” and a post-merger HHI of between 1000 and 1800. A market with an HHI exceeding 1800 is considered highly concentrated such that an acquisition which increases the HHI by more than 50 presents serious anti trust problems. The concentration level in the gold market after a successful takeover would be 1223.2. This post-merger HHI would be the result of an increase of 488.1. {See to McAnneny Affidavit Exh. 9) As such, the merger would probably lead to a government challenge. In response, defendants contest the exclusion of production by communist governments, scrap gold, official reserves, and investment gold in" }, { "docid": "1695132", "title": "", "text": "as a single unit, Pabst/Olympia was the nation’s fourth largest brewer with a national market share of 10.5 percent. Heileman was the nation’s fifth largest brewer with shipments representing 7.6 percent of the national market. With the contemplated transfer of brands representing 3.0 million barrels, Heileman would become the nation’s fourth largest brewer with shipments accounting for 9.3 percent of the national market, and Pabst/Olympia would become the nation’s fifth largest brewer with shipments accounting for 8.8 percent of the industry total. Because the pro posed transactions contemplated the transfer of barrelage from a larger company, Pabst/Olympia, to a smaller company, Heileman, it produced a modest decrease in the national seller concentration Herfindahl Index of 2 points, from 1764 to 1762. Similarly, the industry four-firm concentration ration is diminished by 1.2 percent, from 75.1 percent to 73.9 percent. . Based on 1981 shipments data and treating Pabst and Olympia as a pre-transaction single entity, the acquisition by Heileman of those firms would increase total seller concentration by 163 points, from 1764 to 1927, as measured by the Herfindahl Index. The acquisition would increase the four-firm concentration ratio of sellers by 7.6 percent, from 75.1 percent to 82.7 percent. . The same series of transactions contemplated under Heileman’s earlier tender offer were also contemplated under the HBC Offer. Subject to a minor modification of the proposed Final Judgment filed with the Court on December 27, 1982, the proposed decree is intended to apply to the HBC Offer. . C.A. No. 82-797. . Case Action No. C83-0196; this latter case along with another case, entitled Kalmanovitz v. Jacobs et al., Case No. C83-074, originally filed in the Marin County Superior Court and removed to the California Court, was transferred pursuant to 28 U.S.C. § 1404(a) to this Court by order dated April 26, 1983. . Compare n. 5 (Heileman’s acquisition of retained assets) with n. 4 (Jacobs-Kalmanovitz acquisition of Pabst/Olympia)." }, { "docid": "15776816", "title": "", "text": "market. Plaintiffs describe a world market of noneommunist gold mining, excluding scrap and official government resources. Positing such a market, plaintiffs argue that the interests which Anglo significantly controls demonstrate it currently has a 20% market share and is the largest producer of gold in the world. Gold Fields has a 12% share and is second in the world. A combination of the two would allow Anglo to control approximately one-third of the market. Courts have frequently invalidated corporate combinations where the resulting increase in concentration is less than the increase that would attend the takeover as plaintiffs have portrayed it. See, e.g., United States v. Pabst Brewing Co., 384 U.S. 546, 550-52, 86 S.Ct. 1665, 1668-69, 16 L.Ed.2d 765 (1966) (combination of tenth and eighteenth firms, with a combined market share of 4.49%); United States v. Von’s Grocery Co., 384 U.S. 270, 277, 86 S.Ct. 1478, 1482, 16 L.Ed.2d 555 (1966) (combination of the third and sixth firms with a combined Los Angeles area market share of 7.5%); United States v. Philadelphia Nat’l. Bank, 374 U.S. 321, 364, 83 S.Ct. 1715, 1742, 10 L.Ed.2d 915 (1963) (“Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.”); Stanley Works v. FTC, 469 F.2d 498, 500-01 (2d Cir.1972) (combination of firm with 1% and firm with 22-24%), cert. denied, 412 U.S. 928, 93 S.Ct. 2750, 37 L.Ed.2d 155 (1973). Furthermore, the Department of Justice merger guidelines, considered to be “conservative” in the sense of erring on the side of allowing takeovers to proceed, indicate that the Antitrust Division of the Justice Department would probably challenge such a merger. U.S. Dept, of Justice, Merger Guidelines, reprinted in, 2 Trade Reg.Rep. (CCH) ¶ 4490 (1986). The guidelines measure the market concentration thresholds attending horizontal mergers in terms of the Herfindahl-Hirschmann Index (“HHI”). The HHI evaluates market concentration through a formula that accounts for the relative size and distribution of the firms in a particular market. The HHI is simply the sum of the squares of each firm’s market" }, { "docid": "21047633", "title": "", "text": "the merger is not likely to have such anti-competitive effects. Id. at 363, 83 S.Ct. 1715. The Commission generally can establish a prima facie case by showing that the merged entity will have a significant percentage of the relevant market. See id. at 363, 83 S.Ct. 1715; Cardinal Health, 12 F.Supp.2d at 51. In Philadelphia National Bank, the Court specifically held that a post-merger market share of thirty percent triggers the presumption. 374 U.S. at 364, 83 S.Ct. 1715 (“Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.”). See, e.g., Cardinal Health, 12 F.Supp.2d at 52-53 (finding eighty percent triggers the presumption). Based on 1999 sales data, Swedish Match had a forty-two percent market share in dollar sales, Conwood had a thirty-three percent market share, National had an eighteen percent market share, Swisher had a six percent market share, and Fred Stoker had a one percent market share. The combined Swedish Match entity will have sixty percent of the loose leaf market after the merger, giving it nearly double its closest competitor, Conwood. And the top two firms left in the market—Swedish Match and Conwood—will have ninety percent of the market. In addition to market share, courts examine market concentration and its increase as a result of the proposed acquisition. See Philadelphia Nat’l Bank, 374 U.S. at 363, 83 S.Ct. 1715; see also Cardinal Health, 12 F.Supp.2d at 53; Staples, 970 F.Supp. at 1081. If the acquisition is allowed in this case, the level of concentration would increase significantly under the Herfindahl-Hirschman Index (“HHI”). According to the Merger Guidelines, any market with an HHI over 1800 is highly-concentrated. See FTC v. PPG Indus., Inc., 798 F.2d 1500, 1503 (D.C.Cir.1986) (citing the Merger Guidelines). And unless mitigated by other factors which lead to the conclusion that the merger is not likely to lessen competition, an increase in the HHI in excess of fifty points in a post-merger, highly concentrated market may raise significant competitive concerns. Although the Supreme Court has established no fixed threshold at" }, { "docid": "14455480", "title": "", "text": "this statute, the Supreme Court has ruled “that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.” United States v. Philadelphia National Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963). Accord United States v. General Dynamics Corp., 415 U.S. 486, 497, 94 S.Ct. 1186, 1193-94, 39 L.Ed.2d 530 (1974); Liggett & Myers v. FTC, 567 F.2d 1273, 1275 (4th Cir.1977). Plaintiff claims that a merger of Burlington and Swift Textiles Incorporated, a subsidiary of Dominion, would lessen competition in the United States denim industry. The court surmises that this merger would indeed present legally viable antitrust issues. Burlington and Swift are two of the five largest manufacturers of denim in the United States. These five manufacturers, according to the figures before the court, produce approximately 80% of the denim manufactured in this country thereby evidencing that denim is a highly concentrated market. And denim, as a readily recognizable product, may well constitute a distinct “product market” as defined by Supreme Court decisions. See IV E.W. Kintner, Federal Antitrust Law 337-413 (1984). A combination of Burlington and Swift would control approximatley one-third of the United States denim market. The courts have frequently invalidated corporate combinations where the resulting increase in concentration is less than the increase taht would attend a Burlington and Swift merger. Furthermore, the Department of Justice merger guidelines indicate that the Antitrust Division of the Department of Justice may challenge a merger of Burlington and Swift. The “Justice Guidelines” measure market concentration thresholds attending horizontal mergers in terms of the Herfin-dahl-Hirschmann Index (“HHI”). The HHI evaluates market concentration through a formula that accounts for the relative size and distribution of the firms in a particular market. The HHI measure is simply the sum of the squares of each firm’s market share in" }, { "docid": "21047634", "title": "", "text": "loose leaf market after the merger, giving it nearly double its closest competitor, Conwood. And the top two firms left in the market—Swedish Match and Conwood—will have ninety percent of the market. In addition to market share, courts examine market concentration and its increase as a result of the proposed acquisition. See Philadelphia Nat’l Bank, 374 U.S. at 363, 83 S.Ct. 1715; see also Cardinal Health, 12 F.Supp.2d at 53; Staples, 970 F.Supp. at 1081. If the acquisition is allowed in this case, the level of concentration would increase significantly under the Herfindahl-Hirschman Index (“HHI”). According to the Merger Guidelines, any market with an HHI over 1800 is highly-concentrated. See FTC v. PPG Indus., Inc., 798 F.2d 1500, 1503 (D.C.Cir.1986) (citing the Merger Guidelines). And unless mitigated by other factors which lead to the conclusion that the merger is not likely to lessen competition, an increase in the HHI in excess of fifty points in a post-merger, highly concentrated market may raise significant competitive concerns. Although the Supreme Court has established no fixed threshold at which an increase in market concentration triggers the antitrust laws, see, e.g., Philadelphia Nat’l Bank, 374 U.S. at 363-65, 83 S.Ct. 1715 (1963), this case does not present a close call. The pre-merger loose leaf market is 3,219, which is highly concentrated. The post-merger HHI would increase to 4,733, which represents an increase of 1,514 points and is well beyond the fifty points designated as a concern under the Merger Guidelines. Because of the market share and concentration levels, the Court finds that the Commission has established a presumption under Philadelphia National Bank that Swedish Match’s acquisition of National’s brands is likely to substantially lessen competition in the loose leaf industry. See FTC v. Food Town Stores, Inc., 539 F.2d 1339, 1344-45 (4th Cir.1976) (likelihood of success demonstrated by showing that market concentration would increase substantially). Once this presumption is established, the burden of producing evidence to rebut the presumption shifts to the defendants. See United States v. Marine Bancorporation, Inc., 418 U.S. 602, 613, 94 S.Ct. 2856, 41 L.Ed.2d 978 (1974). See, e.g., Cardinal" }, { "docid": "12084505", "title": "", "text": "82 S.Ct. at 1522 n. 38. Statistics that indicate excessive post-merger market share and market concentration create a presumption that the merger violates the Clayton Act. Philadelphia National Bank, 374 U.S. at 363, 83 S.Ct. at 1741. Both American Stores and California submitted considerable statistical evidence of pre- and post-merger market share and market concentration. American Stores, 697 F.Supp. at 1130. The district court, using the geographic market defined by American Stores, found American Stores’s average post-merger market share to be 24%, with a range from 15% to 38% in individual areas. Two-firm concentration would increase from a pre-merger average of 51% to a post-merger average of 56% and four-firm concentration would increase from an average of 73% to 79%. Id. The district court also used an additional statistical method, the Herfindahl-Herschman Index (HHI), to evaluate the effects of the merger. Id. The court found that the HHI indicated a highly concentrated post-merger market. Id. Finally, the court considered statistical data of historical market share trends. American Stores offered data which it contended reflected a decrease in market concentration. California offered more extensive evidence showing an increase in concentration. Id. at 1131. The district court found that the statistical evidence of market share, market concentration, and market concentration trends created a presumption that American Stores’s acquisition of Lucky would lessen competition substantially. Id. We cannot conclude that the statistics upon which the district court relied were clearly erroneous. All of the statistics were supported by expert testimony. Likewise, the district court did not misapprehend the law in its preliminary assessment of the merits. The district court understood the legal definition of a highly concentrated market and the types of evidence that are probative of market concentration. The district court's evaluation of the statistical evidence required an exercise of judgment. We therefore hold that the district court did not abuse its discretion in finding that California had established a prima facie violation of section 7 of the Clayton Act. American Stores can rebut the district court’s determination of a prima facie violation of section 7 through evidence demonstrating that statistics on" }, { "docid": "646316", "title": "", "text": "taken into account in measuring the so-called “cross-elasticity of demand,” for example, industry or consumer recognition of the products as a market, the peculiar uses and characteristics of the products, the kinds of production facilities, sensitivity to price change, specialized users and vendors. While supply alternatives might better be considered in connection with the case of entry evaluation which is mentioned below, it may be appropriate in determining the product market to identify alternative suppliers. That is to say, firms which can easily and quickly switch their current production to the product in question. Allis-Chalmers Manufacturing Co. v. White Consolidated Industrial, Inc., supra. If the definition of the product and geographic market shows a high degree of concentration resulting from a merger, a prima facie case of illegality has been established. United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). In that case the Court concluded that a merger resulting in a single firm controlling 30 percent of a market where the four-firm concentration ratio exceeded 70 percent was presumptively illegal. United States Department of Justice 1984 merger guidelines employ the Herfindahl-Hirschman Index to measure market concentration. The guidelines characterize a market as unconcentrated if the HHI is below 1,000, moderately concentrated if the HHI is between 1,000 and 1800, and highly concentrated if the HHI is above 1800. Here, of course, according to the government, the HHI in the regular sprayer market will be 7100 after the merger and the HHI in the regular dispenser market will be 6400 after the merger. If a merger does not result in an impermissible degree of market concentration, no further inquiry is required. However, if a merger does result in a high degree of concentration, it still may be shown that the merger will not result in a substantial lessening of competition because factors at work in the market will make it unlikely that the remaining producers in the market will be able to exercise market control. An example of such a factor is ease of entry, a condition which defendants urge exists in this" }, { "docid": "646312", "title": "", "text": "consists of “regular dispensers.” The complaint defines a regular dispenser as “a plastic pump with a spout that, when fully depressed, dispenses a steady stream of approximately one to two cubic centimeters of viscous liquid from a container.” Further, the complaint alleges, and defendants do not deny, that the United States is the relevant geographic market in which both regular sprayers and regular dispensers are sold. The complaint purports to measure the effects of the proposed merger by application of the Herfindahl-Hirschman Index (the “HHI”). The HHI measures market concentration by squaring the market share of each firm competing in the market and then summarizing the resulting numbers. There are, according to the complaint, three domestic manufacturers of regular sprayers including Calmar with 60 percent of the market and Realex with 23 percent of the market. The HHI is now approximately 4,400. Calmar’s acquisition of Realex would increase the HHI by more than 2,700 to more than 7100. There are, according to the complaint, five domestic manufacturers of regular dispensers including Calmar with 58 percent of the market and Realex with 21 percent of the market. The HHI for the market is now approximately 4,000. Calmar’s acquisition of Realex would increase the HHI by more than 2,400 to more than 6400. The complaint charges that this dramatic increase in the HHI in each of the product markets defined in the complaint reflects the actual anticompetitive effect in the marketplace which would result from the merger, for example, the elimination of competition between Calmar and Realex, increased concentration in already highly concentrated markets and a substantial lessening of competition in the two markets. II. The Applicable Legal Principles To obtain a preliminary injunction a party must demonstrate (i) a reasonable likelihood of eventual success on the merits and (ii) the probability of irreparable injury if the relief is not granted. The Court must also consider the consequences which the decision would have upon other persons and it must consider the overall public interest. Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148 (3d Cir.1984). In an action brought by" }, { "docid": "14455482", "title": "", "text": "the relevant market. The HHI increases as the number of firms in the market decreases and as the disparity in size among those firms increases. For example, a market consisting of two firms with market shares of 60% and 40% would have an HHI of 5200 (60 squared + 40 squared). A market consisting of 10 firms with market shares of 10% each would have an HHI of 1000 (10 squared + 10 squared +...). A market consisting of 100 firms with market shares of 1% each would have an HHI of 100. The Justice Guidelines indicate that a market with an HHI exceeding 1800 is a highly concentrated market and that an acquisition, in such a highly concentrated market, which increases the HHI by more than 50 presents serious antitrust problems. The figures in this case indicate an unacceptable change in the HHI. According to Swift’s estimates, the top five producers of denim in the United States control the following market shares: Cone Mills 25.2% Burlington 25.1% Greenwood 11.0% Riegel 10.7% Swift 8.1% Source: “Expansion and Modernization Proposal: February 1987” (Koon Dep. Ex. 1 at Í415). The current HHI for this market is: 25.2 x 25.2 635.04 25.1 X 25.1 630.01 11.0 x 11.0 121.00 10;7 X 10.7 114.49 HHI 1,500.54 The post-merger HHI would be: 33.2 X 33.2 = 1.102.24 (25.1% of Burlington added to 25.2 x 25.2 = 635.04 the 8.1% of Swift) 11.0 X 11.0 = 121.00 10.7 X 10.7 = 114.49 HHI = 1,972.77 The change in HHI would be 472.23 (1972.-77 less 1500.54), a figure suggesting that the Department of Justice is likely to challenge the merger. Regardless of the potential antitrust problems that attend an attempted merger, the law requires that a private party, such as Burlington, must have standing to seek an injunction, on antitrust grounds, of the potential merger. “Standing” to sue means simply that the party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). Standing is" }, { "docid": "18578513", "title": "", "text": "be chimerical. Market concentration, and hence presumed power, is commonly measured according to the Herfindahl-Hirschman Index (“HHI”). As the U.S. Department of Justice Merger Guidelines explain, “[t]he HHI is calculated by summing the squares of the individual market shares of all the firms included in the market____ Unlike the traditional four-firm concentration ratio, the HHI reflects both the distribution of the market shares of the top four firms and the composition of the market outside the top four firms.” U.S. Department of Justice Merger Guidelines at 13-14 (1984) (footnote omitted) (“Merger Guidelines”). The Department of Justice divides market concentration into three categories and characterizes a market with an HHI below 1000 as “unconcentrated.\" Merger Guidelines at 15. When the HHI is between 1000 and 1800, the market is “moderately concentrated,” and above 1800, “highly concentrated.” Id. One would suppose that a “tight oligopoly” is a market that is “highly concentrated.” In fact, when the market shares plaintiffs provided are squared, the van line market has an HHI of approximately 520. It is thus low on the range of unconcentrated markets. The Guidelines state that “the Department will not challenge mergers falling in this region [below 1000], except in extraordinary circumstances.” Id. No extraordinary circumstances have been shown, or even suggested, in this case. We do not mean to suggest that if the HHI were higher and within one of the more concentrated categories, the arrangement would necessarily be illegal. It must be recalled that the Guidelines apply to mergers tested under section 7 of the Clayton Act, a statute aimed at halting “incipient monopolies and trade restraints outside the scope of the Sherman Act,” Brown Shoe, 370 U.S. at 318 n. 32, 82 S.Ct. at 1520 n. 32, and which therefore applies a much more stringent test than does rule-of-reason analysis under section 1 of the Sherman Act. It must also be recalled that the Guidelines apply to mergers between firms that ordinarily have no internal competition. Here we are dealing with firms that are merely limiting internal competition and are not merging to eliminate competition between firms. Indeed, if" }, { "docid": "12084504", "title": "", "text": "upon which the district court relied were not clearly erroneous. They were supported by expert testimony. Confronted with two competing theories of the market, both supported by evidence, the district court exercised its judgment concerning the cross-elasticity of demand. At this stage, we do not resolve conflicts in the evidence. FTC v. Warner Communications Inc., 742 F.2d 1156, 1164 (9th Cir.1984) (Warner Communications). We therefore conclude that the district court did not abuse its discretion in limiting the product market to the described supermarkets. B. American Stores argues that the district court erred in its analysis of the merger’s effects on competition. Relevant indicia of competitive effects are (1) the market shares of the merging firms, (2) the degree of concentration in the market, and (3) the degree to which that concentration is increased by the merger. See United States v. Von’s Grocery Co., 384 U.S. 270, 277-78, 86 S.Ct. 1478, 1482, 16 L.Ed.2d 555 (1966); Philadelphia National Bank, 374 U.S. at 363-65, 83 S.Ct. at 1741-43; Brown Shoe, 370 U.S. at 322 n. 38, 82 S.Ct. at 1522 n. 38. Statistics that indicate excessive post-merger market share and market concentration create a presumption that the merger violates the Clayton Act. Philadelphia National Bank, 374 U.S. at 363, 83 S.Ct. at 1741. Both American Stores and California submitted considerable statistical evidence of pre- and post-merger market share and market concentration. American Stores, 697 F.Supp. at 1130. The district court, using the geographic market defined by American Stores, found American Stores’s average post-merger market share to be 24%, with a range from 15% to 38% in individual areas. Two-firm concentration would increase from a pre-merger average of 51% to a post-merger average of 56% and four-firm concentration would increase from an average of 73% to 79%. Id. The district court also used an additional statistical method, the Herfindahl-Herschman Index (HHI), to evaluate the effects of the merger. Id. The court found that the HHI indicated a highly concentrated post-merger market. Id. Finally, the court considered statistical data of historical market share trends. American Stores offered data which it contended reflected a" }, { "docid": "1695130", "title": "", "text": "in the national market would have increased total seller concentration by 112 points, from 1722 to 1834, as measured by the Herfindahl Index. The four-firm concentration ratio of sellers would have increased by 7.4 percentage points, from 72.2 percent to 79.6 percent. In the northern portion of the United States, the increase in concentration as a result of the merger, as measured by the Herfindahl Index, would have been substantially greater than in the nation as a whole. . Based on 1981 shipments data, the combination melded together the nation’s fifth largest brewer (Pabst) with 7.4 percent of total industry shipments and the sixth largest brewer (Olympia) with 3.1 percent of industry shipments. The resulting firm was the nation’s fourth largest brewer with 10.5 percent of total industry shipments. Nationally, the combination increased industry seller concentration, as measured by the Herfindahl Index, by 42 points, from 1722 to 1764. It increased the industry four-firm concentration ratio by 2.9 percent from 72.2 percent to 75.1 percent. . The Division treated JMSL’s acquisition of Pabst and Olympia as a consolidation of these firms with General Brewing Company, Falstaff Brewing Company and Pearl Brewing Company, the companies controlled by Kalmanovitz. If successful, the second JMSL tender offer would have left Mr. Kalmanovitz with a 50 percent interest in the company owning Pabst and Olympia. The Division also treated Pabst and Olympia as one entity in recognition of the Pabst/Olympia transaction heretofore described. Under this analysis, in 1981, the JMSL transaction would have combined the nation’s fourth largest brewer (Pabst/Olympia) with a national market share of 10.5 percent and the Kalmanovitz companies, collectively the nation’s eighth largest brewer, accounting for 2.0 percent of total industry shipments. The resulting combination would have remained the nation’s fourth largest brewer with a national market share of 12.5 percent. Nationally, the transaction would have increased total seller concentration, as measured by the Herfindahl Index, by 42 points, from 1764 to 1806. It would have increased the four-firm concentration ratio by 2.0 percent from 75.1 percent to 77.1 percent. . Based on 1981 data and treating Pabst and Olympia" }, { "docid": "13454853", "title": "", "text": "Brown Shoe Co. v. United States, 370 U.S. at 323, 82 S.Ct. 1502. That concentration and its tendency to increase comprise the touchstone for appraising the threat from a merger is squarely and trenchantly put by Mr. Justice Brennan in United States v. Philadelphia National Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963): “This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.” (Accent added.) The determination now in issue may be rested on this thesis alone. The adequacy of this measurement of proof was repeated in United States v. General Dynamics Corporation, 415 U.S. 486, 497, 94 S.Ct. 1186, 39 L.Ed.2d 530 (1974). The figures for the year (1968) previous to purchase are informative on the issue of concentration and its trend. To begin with, 54.44 percent of the all-dog-food market in 1968 was held by only four firms. Of these, Liggett, holding 10.99 percent of that market, was fourth in line. During the same year, Ready Foods (later Perk) was sixth with 4.41 percent of the market. In 1969, in large part because of the acquisition, the top four firms increased their share of the market to 59.01 percent, and Liggett (now holding both Perk and Allen) with 15.76 percent of the market has risen to second place among all manufacturers of dog food. In the submarket comprising all canned dog food, at least 59 percent of the sales volume was foreclosed by four firms in 1968. Liggett was in first place with 22.2 percent of the market, while Ready Foods (Perk) was fifth with 4.4 percent. In 1969, the top four firms" }, { "docid": "1695131", "title": "", "text": "as a consolidation of these firms with General Brewing Company, Falstaff Brewing Company and Pearl Brewing Company, the companies controlled by Kalmanovitz. If successful, the second JMSL tender offer would have left Mr. Kalmanovitz with a 50 percent interest in the company owning Pabst and Olympia. The Division also treated Pabst and Olympia as one entity in recognition of the Pabst/Olympia transaction heretofore described. Under this analysis, in 1981, the JMSL transaction would have combined the nation’s fourth largest brewer (Pabst/Olympia) with a national market share of 10.5 percent and the Kalmanovitz companies, collectively the nation’s eighth largest brewer, accounting for 2.0 percent of total industry shipments. The resulting combination would have remained the nation’s fourth largest brewer with a national market share of 12.5 percent. Nationally, the transaction would have increased total seller concentration, as measured by the Herfindahl Index, by 42 points, from 1764 to 1806. It would have increased the four-firm concentration ratio by 2.0 percent from 75.1 percent to 77.1 percent. . Based on 1981 data and treating Pabst and Olympia as a single unit, Pabst/Olympia was the nation’s fourth largest brewer with a national market share of 10.5 percent. Heileman was the nation’s fifth largest brewer with shipments representing 7.6 percent of the national market. With the contemplated transfer of brands representing 3.0 million barrels, Heileman would become the nation’s fourth largest brewer with shipments accounting for 9.3 percent of the national market, and Pabst/Olympia would become the nation’s fifth largest brewer with shipments accounting for 8.8 percent of the industry total. Because the pro posed transactions contemplated the transfer of barrelage from a larger company, Pabst/Olympia, to a smaller company, Heileman, it produced a modest decrease in the national seller concentration Herfindahl Index of 2 points, from 1764 to 1762. Similarly, the industry four-firm concentration ration is diminished by 1.2 percent, from 75.1 percent to 73.9 percent. . Based on 1981 shipments data and treating Pabst and Olympia as a pre-transaction single entity, the acquisition by Heileman of those firms would increase total seller concentration by 163 points, from 1764 to 1927, as measured" }, { "docid": "3642519", "title": "", "text": "S.Ct. at 1511. In six cities the combined share of children’s shoe sales by the merged companies, Brown Shoe Co. and Kinney, exceeded 40%, and in one city their combined share of women’s shoe sales exceeded 57%, 370 U.S. at 343. In Philadelphia National Bank, supra, the merger, which was between the second and third largest competitors in the market area, would have resulted in one bank controlling 34-36 % of a market in which the four largest banks would control 77-78%. Here also there had been a market trend toward concentration, with the number of competitors plummeting and the merger participants repeatedly playing a major role in that trend. The Court observed that the number of commercial banks had declined from 108 in 1947 to 42 in 1962, with Philadelphia National Bank having acquired nine formerly independent banks and Girard, the other party to the merger, six. In Continental Can Co., supra, the top two firms, of which Continental Can was one, controlled nearly 49% of the $3 billion market (combined metal-glass containers) and the top six firms controlled 70.1%. Continental had a history of growth by horizontal acquisitions, having acquired no less than 35 firms in various interrelated container markets since 1913. 378 U.S. at 445, 84 S.Ct. 1738. Lastly, the company acquired under the challenged merger, Hazel-Atlas, ranked sixth largest with 3.1% of the market and had competed vigorously against Continental Can, competition which would be eliminated by the merger. Von’s Grocery, supra, which involved the third and sixth ranking firms in the market, is another example of one more merger in an industry marked by a precipitous trend toward increasing concentration of ownership, in which the larger firms played an active role in the continuing acquisition process. Of these firms the present participants were two of the most aggressive, each having doubled in size during the ten years immediately preceding the merger under attack. Another decision referred to by the majority, United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 166, 16 L.Ed.2d 765 (1966), also cannot fairly be relied upon as governing the" }, { "docid": "21047632", "title": "", "text": "3. Probable Effect on Competition Having defined the relevant product market as loose leaf chewing tobacco sold in the United States, the Court must next consider the likely effects of the proposed acquisition on competition within that market. See United States v. Marine Bancorporation, 418 U.S. 602, 618-23, 94 S.Ct. 2856, 41 L.Ed.2d 978 (1974). If the FTC can make a prima facie showing that the acquisition in this case will result in a significant market share and an undue increase in concentration within the loose leaf market, a presumption is established that it will substantially lessen competition. See United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). As the Supreme Court stated in Philadelphia National Bank: [A] merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anti-competitive effects. Id. at 363, 83 S.Ct. 1715. The Commission generally can establish a prima facie case by showing that the merged entity will have a significant percentage of the relevant market. See id. at 363, 83 S.Ct. 1715; Cardinal Health, 12 F.Supp.2d at 51. In Philadelphia National Bank, the Court specifically held that a post-merger market share of thirty percent triggers the presumption. 374 U.S. at 364, 83 S.Ct. 1715 (“Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.”). See, e.g., Cardinal Health, 12 F.Supp.2d at 52-53 (finding eighty percent triggers the presumption). Based on 1999 sales data, Swedish Match had a forty-two percent market share in dollar sales, Conwood had a thirty-three percent market share, National had an eighteen percent market share, Swisher had a six percent market share, and Fred Stoker had a one percent market share. The combined Swedish Match entity will have sixty percent of the" }, { "docid": "13454854", "title": "", "text": "General Dynamics Corporation, 415 U.S. 486, 497, 94 S.Ct. 1186, 39 L.Ed.2d 530 (1974). The figures for the year (1968) previous to purchase are informative on the issue of concentration and its trend. To begin with, 54.44 percent of the all-dog-food market in 1968 was held by only four firms. Of these, Liggett, holding 10.99 percent of that market, was fourth in line. During the same year, Ready Foods (later Perk) was sixth with 4.41 percent of the market. In 1969, in large part because of the acquisition, the top four firms increased their share of the market to 59.01 percent, and Liggett (now holding both Perk and Allen) with 15.76 percent of the market has risen to second place among all manufacturers of dog food. In the submarket comprising all canned dog food, at least 59 percent of the sales volume was foreclosed by four firms in 1968. Liggett was in first place with 22.2 percent of the market, while Ready Foods (Perk) was fifth with 4.4 percent. In 1969, the top four firms in the submarket had increased their share to 64.4 percent, and Liggett had increased its share to 29 percent, fully 12 percent of the submarket ahead of its nearest rival. The Commission read these ratios as establishing “undue concentration”, under the circumstances, in both the all-dog-food market and the canned-dog-food submarket. This interpretation was fully warranted by analogous conclusions in recent precedents. E. g.; United States v. Pabst Brewing Co., 384 U.S. 546, 550, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966); United States v. Continental Can Co., 378 U.S. at 461, 84 S.Ct. 1738; United States v. Aluminum Co. of America, 377 U.S. 271, 277-81, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964); United States v. Philadelphia Nat’l Bank, 374 U.S. at 364 n. 41 et seq., 84 S.Ct. 1715. Our judgment is that this determination was well within the range of the expertise of this administrative agency, and we cannot invalidate it as unwarrantable. In this appraisal, we must be mindful throughout that the Commission is commanded only to weigh what under the circumstances presented" }, { "docid": "14455481", "title": "", "text": "figures before the court, produce approximately 80% of the denim manufactured in this country thereby evidencing that denim is a highly concentrated market. And denim, as a readily recognizable product, may well constitute a distinct “product market” as defined by Supreme Court decisions. See IV E.W. Kintner, Federal Antitrust Law 337-413 (1984). A combination of Burlington and Swift would control approximatley one-third of the United States denim market. The courts have frequently invalidated corporate combinations where the resulting increase in concentration is less than the increase taht would attend a Burlington and Swift merger. Furthermore, the Department of Justice merger guidelines indicate that the Antitrust Division of the Department of Justice may challenge a merger of Burlington and Swift. The “Justice Guidelines” measure market concentration thresholds attending horizontal mergers in terms of the Herfin-dahl-Hirschmann Index (“HHI”). The HHI evaluates market concentration through a formula that accounts for the relative size and distribution of the firms in a particular market. The HHI measure is simply the sum of the squares of each firm’s market share in the relevant market. The HHI increases as the number of firms in the market decreases and as the disparity in size among those firms increases. For example, a market consisting of two firms with market shares of 60% and 40% would have an HHI of 5200 (60 squared + 40 squared). A market consisting of 10 firms with market shares of 10% each would have an HHI of 1000 (10 squared + 10 squared +...). A market consisting of 100 firms with market shares of 1% each would have an HHI of 100. The Justice Guidelines indicate that a market with an HHI exceeding 1800 is a highly concentrated market and that an acquisition, in such a highly concentrated market, which increases the HHI by more than 50 presents serious antitrust problems. The figures in this case indicate an unacceptable change in the HHI. According to Swift’s estimates, the top five producers of denim in the United States control the following market shares: Cone Mills 25.2% Burlington 25.1% Greenwood 11.0% Riegel 10.7% Swift 8.1% Source:" }, { "docid": "21047664", "title": "", "text": "it may be true that there is no bright line between an eighty-five percent statistical significance level and more typically accepted levels of confidence such as ninety-five percent, the defendants have simply not convinced the Court in the totality of the circumstances of this case, which includes Dr. Train’s inconsistencies, that it would be appropriate to accept conclusions at this lesser level of confidence. The Court will accordingly refuse their invitation to do so in this case. . As a more accurate measure of market concentration, economists have created and courts have consistently relied upon the HHI. The HHI calculates market power summing the squares of the individual market shares of all the firms in the market. The HHI takes into account the relative size and distribution of the firms in a market, increasing both as the number of firms in the market decreases and as the disparity in size among those firms increases. It has been officially adopted by the government in the Merger Guidelines to measure market concentration. Under the Merger Guidelines, a market with an HHI of less than 1000 is ''unconcentrated.” An HHI between 1000 and 1800 indicates a \"moderately concentrated” market, and any market with an HHI over 1800 qualifies as \"highly concentrated.” See FTC v. PPG Indus., Inc., 798 F.2d 1500, 1503 (D.C.Cir.1986) (citing the Merger Guidelines). Further, according to the Merger Guidelines, unless mitigated by other factors which lead to the conclusion that the merger is not likely to lessen competí tion, an increase in the HHI is excess of 50 points in a post-merger highly concentrated market may raise significant competitive concerns. In cases where the post-merger HHI is less than 1,800, but greater than 1,000, the Merger Guidelines presume that a 100 point increase in the HHI is evidence that the merger will create or enhance market power. . The Merger Guidelines are not binding on the Court, but as this Circuit has stated, they do provide \"a useful illustration of the application of the HHI.” Id. at 1503 n. 4. . All of this results in coordinated pricing. The defendants’" } ]

[ { "docid": "18737127", "title": "", "text": "the bankruptcy court. Id. at 139 n. 10, 99 S.Ct. at 2213 n. 10. Since Brown the doctrine of collateral es-toppel has been applied to sustain bankruptcy courts’ determinations of nondis-chargeability under § 523. See, e.g., Spilman v. Harley, 656 F.2d 224 (6th Cir.1981); Matter of Schuler, 722 F.2d 1253 (5th Cir.1984). Collateral estoppel may apply where the issue to be determined is identical in each proceeding and was necessary or essential to the outcome of the state court case and where the prior state court judgment has been reached through actual litigation of that issue. Matter of Schuler, supra, 722 F.2d at 1256. In the instant case, the Judgment of the state court reflects a prior determination of embezzlement which is essentially the same determination required by § 523(a)(4). Embezzlement under § 523(a)(4) is defined according to federal common law as “the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.” In re Graziano, 35 B.R. 589 (Bkrptcy E.D. N.Y.1983); In re Gumieny, 8 B.R. 602 (E.D.Wis.1981). The definition of embezzlement is the same in New Mexico. See State v. Seefeldt, 54 N.M. 24, 212 P.2d 1053 (1949). The state court Judgment reflects that the issue was actually litigated by the parties and necessarily decided. Appellant had every incentive to litigate this issue and had a full and fair opportunity to do so. The fact that Appellant appeared pro se does not lessen the collateral effect of the state court judgment. The standard of review to which this court is bound is whether the decision below is clearly erroneous. Matter of Stafos, 666 F.2d 1343, 1346 (10th Cir.1981). Here, the bankruptcy court’s decision was an accurate determination of the law and an appropriate application of that law to the facts before it. Now, Therefore, IT IS BY THE COURT ORDERED that the Memorandum Opinion of the Bankruptcy Court filed on July 22,1985 shall be, and hereby is, affirmed." } ]

[ { "docid": "6581594", "title": "", "text": "buildings were constructed. Tsamasfyros acted as managing general partner of the two partnerships. When most of the relevant events in this case occurred, there were two other partners in AMA and PAA, Larry R. Andrews and Sherman R. Schrock. Because of mismanagement by Tsamasfyros and a downturn in economic conditions, AMA went into bankruptcy and the property owned by PAA was foreclosed. In 1986, Andrews and Schrock initiated a lawsuit in Colorado state court. In this action, Andrews and Schrock sued the AMA, Tsamasfyros and Nelson for an accounting of the partnerships and other claims. (These claims were subsequently settled.) Tsamasfyros cross-claimed against Nelson for breach of the contract to pay partnership contributions and for payment on a note. Nelson cross-claimed against Tsamasfyros for breach of the partnership contract, breach of fiduciary duty, negligence, misrepresentation and fraud. After several continuances, and with Tsamasfyros acting -pro se (but with advisory counsel), the state court held a trial on Nelson and Tsamasfyros’ cross-claims. On April 11, 1988, in a single-spaced, 22-page judgment, the court entered its detailed findings of fact and conclusions of law. The court found for Nelson on his breach of partnership agreement, breach of fiduciary duty, and misrepresentation claims, awarding damages in the amount of approximately $169,000 and other relief. On the negligence claim, it held that Tsamasfy-ros was negligent, but that Nelson had not established that this negligence was the cause of his damages. The court ruled against Nelson on his fraud claim, finding insufficient evidence of fraudulent intent. As for Tsamasfyros, the court awarded Tsamasfyros damages for certain excess capital contributions he made to the partnerships, but denied his claim against Nelson for payment on the note. Tsamasfyros filed for bankruptcy under Chapter 7 on May 9, 1988. Nelson then brought the instant action to have Tsamas-fyros’ judgment debt to him declared non-dischargeable under §§ 523(a)(2), 523(a)(4) and 523(a)(6) of the Bankruptcy Code. On November 29,1988, Nelson moved for summary judgment, claiming that the state court judgment should be given preclusive effect in the nondischargeability action. After a hearing, the bankruptcy court granted the motion. The court" }, { "docid": "16870323", "title": "", "text": "McWILLIAMS, Circuit Judge. This is an appeal from the judgment of the district court which affirmed a bankruptcy court’s order that a state court judgment was non-dischargeable under 11 U.S.C. § 523. We affirm. On April 11,1988, a state district court in Arapahoe County, Colorado, after a four-day trial to the court, entered judgment in favor of L. Bruce Nelson against Constantine J. Tsamasfyros in the sum of $162,-500.92. Nelson had asserted several claims for relief against Tsamasfyros, one of which was for a breach of fiduciary duty. The state district court, in a 22-page single-spaced typewritten order, held, inter alia, that “beyond a reasonable doubt ... Dr. Tsamasfyros’ actions in breaching his fiduciary duties were attended by circumstances of fraud and by a wanton or reckless disregard of Nelson’s rights and feelings.” On May 9, 1988, Tsamasfyros filed a voluntary petition in bankruptcy under Chapter 7 of the United States Bankruptcy Code. On September 9, 1988, Nelson filed in the bankruptcy court a Complaint to Determine the Dischargeability of the judgment debt which he had obtained in state court against Tsamasfyros. Attached to the complaint was the 22-page opinion of the state district court setting forth its findings, conclusions and judgment in con siderable detail. The gist of Nelson’s complaint was that his judgment debt against Tsamasfyros was non-dischargeable in bankruptcy under the provisions of 11 U.S.C. § 523. By answer, Tsamasfyros contended that Nelson’s judgment debt against him was dischargeable in bankruptcy. Thereafter, Nelson filed a motion for summary judgment, to which Tsamasfyros filed a response in opposition. The basis for Nelson’s motion for summary judgment was that because the state district court’s judgment was based, in part, on its determination that Tsamasfyros fraudulently breached his fiduciary duty to Nelson, the judgment debt was non-dischargeable under 11 U.S.C. § 523, and that Tsamasfyros was collaterally estopped from contending otherwise. On May 1, 1989, the bankruptcy judge filed an 8-page Memorandum and Order in which he held that Nelson’s judgment debt against Tsamasfyros was non-dischargea-ble in the latter’s bankruptcy proceeding under the provisions of 11 U.S.C. § 523(a)(2)(A). Pursuant" }, { "docid": "16300275", "title": "", "text": "(March 18, 1999). Based on the foregoing and the Probate Court’s conclusion that Debtor “wasted or failed to deliver $53,738.41,” I hold that the Probate Court found a defalcation occurred such that the debt in question should be excepted from discharge pursuant to § 523(a)(4). This court is unaware of any Georgia law that speaks directly to whether a defendant is considered to have received a full and fair opportunity to litigate when they were unrepresented in a prior action. However, the following language from an early Georgia case is instructive: [W]hen the law of the land affords to a litigant an opportunity to be heard, and he fails to avail himself of that opportunity, he is bound by the judgment of a court which has jurisdiction of the sub ject-matter and the person, notwithstanding the fact that, if objection had been made in due time and in the proper manner, no such judgment would have been rendered. Kelly v. Strouse, 116 Ga. 872, 43 S.E. 280, 288 (1903) Other courts have rejected the argument that the choice or failure of a debtor to obtain legal counsel during a prior adjudication prohibits application of collateral es-toppel to the issues resolved therein. See Nelson v. Tsamasfyros (In re Tsamasfyros), 940 F.2d 605, 607 (10th Cir.1991) (“We reject any suggestion that because [debtor] appeared pro se in the state court proceeding, collateral estoppel is inappo-site.”). Here, Debtor had both the incentive to pursue the issue and the opportunity to be heard in the prior Probate Court proceeding. In fact, Debtor tendered evidence validating $13,421.69 of the $67,160.10 expended. Thus, I hold that the fact that Debtor was unrepresented in the prior Probate Court action has no effect on its binding nature in the current adversary proceeding. Conclusion Debtor contends that she can prove that all of the expenditures of Brook’s funds were authorized. However, the principle of collateral estoppel and the requirement that this Court give full faith and credit to the findings of the Glynn County Probate Court preclude this Court from the hearing such evidence. As a general rule, if" }, { "docid": "6581596", "title": "", "text": "held that the state judge’s specific findings as to Tsamasfyros’s misrepresentations justified the application of collateral estoppel on Nelson’s § 523(a)(2) claim. It therefore found it unnecessary to rule on Nelson’s §§ 523(a)(4) and 523(a)(6) claims. Tsamas-fyros now appeals this ruling. II. Issues. A. Collateral Estoppel Effect of State Court Judgment. The parties agree that in this Circuit Klemens v. Wallace (In re Wallace), 840 F.2d 762 (10th Cir.1988), governs application of the doctrine of collateral estoppel in bankruptcy proceedings. Under In re Wallace, collateral estoppel is binding on the bankruptcy court and precludes relitigation of factual issues if (1) the issue to be precluded is the same as that involved in the prior state action, (2) the issue was actually litigated by the parties in the prior action, and (3) the state court’s determination of the issue was necessary to the resulting final and valid judgment. Id. at 765. Tsamasfyros challenges only the first element above: whether the issue to be precluded was the same as that involved in the prior state action. He argues that the state court’s finding that he had engaged in misrepresentation was based on only a preponderance of the evidence, and not clear and convincing evidence, and therefore collateral estoppel was improper. Tsa-masfyros further contends that in ruling on the breach of fiduciary duty counterclaim, the state court relied on Lindsay v. Marcus, 137 Colo. 336, 343, 325 P.2d 267 (1958), and that this case requires only “slight evidence” to sustain this type of claim. See Brief of Appellant at 18; R. Doc. 32, Ex. A at 13. Tsamasfyros cites language in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), in support of this proposition. In that case, the Supreme Court ruled that a bankruptcy court is not barred by res judicata from determining, independent of a state court judgment, the nature of a debt for the purposes of dischargeability. The Court held, however, that its decision did not foreclose the application of collateral estoppel. “If, in the course of adjudicating a state-law question, a state court should determine" }, { "docid": "6581604", "title": "", "text": "a creditor, but to determine whether a pre-existing debt should be declared non-dischargeable. The debt is represented by the state court judgment, and if that judgment is given preclusive effect in a nondischargeability proceeding, the state court’s calculation of damages cannot be collaterally attacked in the bankruptcy court. See Audio Visual Sys., Inc. v. Hopper, 71 B.R. 67, 68 (Bankr. D. Colo. 1987). Tsamasfyros did not appeal the state court’s ruling on damages in that forum, and he cannot challenge the correctness of that ruling here. IT IS ORDERED that the bankruptcy court is affirmed. . Tsamasfyros makes two additional contentions in arguing the above points. He alleges that he was prejudiced in the state court proceeding because he appeared pro se, and that the record of the state court proceedings transmitted to the bankruptcy court was inaccurate and improperly verified. Neither contention has merit. \"The fact that the appellant appeared pro se does not lessen the collateral effect of the state court judgment.\" Klemens v. Wallace, 62 B.R. 91, 92 (D.N.M.1986), aff'd, 840 F.2d 762 (10th Cir.1988). Moreover, the record indicates that an advisory attorney was present during at least part of the state court proceedings. See R. Doc. 32, Ex. A at 1. Although the state court files for this case were lost or stolen, Nelson’s attorney provided the bankruptcy court with duplicates from his files, with a letter stating that the documents were true and correct copies. See R. Vol. I, Doc. 29 at 2. That Nelson did not file a sworn affidavit to this effect is inconsequential, especially since Tsamasfyros does not indicate how these documents were inaccurate or defective. . Tsamasfyros’ argument that the state court required only slight evidence on the breach of fiduciary duty claim has little merit. First, the state court cited Lindsay and another state court case, Hooper v. Yoder, 737 P.2d 852 (Colo.1987), not for the evidentiary standard they applied, but for the proposition that one partner owes another partner certain fiduciary duties. Moreover, it is clear that the court did not use the \"slight evidence\" standard in considering the" }, { "docid": "6581593", "title": "", "text": "MEMORANDUM OPINION AND ORDER KANE, Senior District Judge. The central issue in this appeal is whether the bankruptcy court was correct in giving preclusive effect to a state court judgment against the debtor, Constantine Tsamasfyros, in nondischargeability proceedings under § 523 of the Bankruptcy Code. In challenging the bankruptcy court’s ruling on summary judgment, Tsa-masfyros raises two grounds for reversal. First, he contends the state court judge’s findings relating to misrepresentation and breach of fiduciary duty were based at best on the “preponderance of the evidence” standard of proof and not the “clear and convincing” standard required in bankruptcy cases. Second, Tsamasfyros argues that the measure of damages awarded in the state court judgment was improper in a bankruptcy dischargeability case. I affirm. I. Facts. Tsamasfyros is a physician who was also engaged in real estate development. Tsa-masfyros and Nelson were involved in two partnerships: Arapahoe Medical Associates (AMA) and Plaza Arapahoe Associates (PAA). AMA was founded in 1983, and PAA was founded in 1985. Both partnerships were formed to develop properties upon which office buildings were constructed. Tsamasfyros acted as managing general partner of the two partnerships. When most of the relevant events in this case occurred, there were two other partners in AMA and PAA, Larry R. Andrews and Sherman R. Schrock. Because of mismanagement by Tsamasfyros and a downturn in economic conditions, AMA went into bankruptcy and the property owned by PAA was foreclosed. In 1986, Andrews and Schrock initiated a lawsuit in Colorado state court. In this action, Andrews and Schrock sued the AMA, Tsamasfyros and Nelson for an accounting of the partnerships and other claims. (These claims were subsequently settled.) Tsamasfyros cross-claimed against Nelson for breach of the contract to pay partnership contributions and for payment on a note. Nelson cross-claimed against Tsamasfyros for breach of the partnership contract, breach of fiduciary duty, negligence, misrepresentation and fraud. After several continuances, and with Tsamasfyros acting -pro se (but with advisory counsel), the state court held a trial on Nelson and Tsamasfyros’ cross-claims. On April 11, 1988, in a single-spaced, 22-page judgment, the court entered its detailed" }, { "docid": "3087536", "title": "", "text": "concludes that all the tests for the application of collateral estoppel have been met. Thus, collateral estoppel is applicable and the debtor-defendant will not be permitted to relitigate the issue of fraud. As the issue of fraud on the part of the debtor-defendant will not be permitted to be relitigated, as a matter of law, this court holds that the debt falls within the exception to discharge under 11 U.S.C. § 523(a)(2)(A) & (B). Thus, the debt of the debtor-defendant to the plaintiff is ordered to be excepted from discharge. The debtor-defendant also raises the issue that collateral estoppel should not be allowed because he was acting pro se in the previous proceeding. This court does not accept debtor-defendant’s argument and directs the debtor-defendant’s attention to the fact that the district court continuously advised the debtor-defendant to obtain counsel, which he refused to do. Thus, in accordance with well-established decisions in this circuit, this court rejects debtor-defendant’s argument. See Nelson v. Tsamasfyros (In re Tsamasfyros), 940 F.2d 605 (10th Cir.1991). The debtor-defendant also argues that punitive damages should be discharged under 11 U.S.C. § 523. The debtor-defendant raises this claim as the final award granted by the district court was a result of trebling the actual damages as punitive damages. However, this argument also falls within the ambit of collateral estoppel as the debtor-defendant previously had the opportunity to litigate the issue but failed to do so. Further, the Court of Appeals for the Tenth Circuit has recognized that punitive damages may not be discharged under 11 U.S.C. § 523. See Klemens v. Wallace (In re Wallace), 840 F.2d 762, 765 (10th Cir.1988); First National Bank of Albuquerque v. Franklin (In re Franklin), 726 F.2d 606, 608 (10th Cir.1984). See also Bryan v. Manley (In re Manley), 135 B.R. 137 (Bankr.N.D.Okla.1992). Accordingly, the motion for summary judgment of the plaintiff, Magdelena Moretta MeCart, is granted. . Under the requirement of identity of issue, for collateral estoppel to apply, there must exist a strict identity of issues such that the controlling facts and applicable legal rules remain unchanged. Commissioner of Internal" }, { "docid": "16870329", "title": "", "text": "had resolved his argument that collateral estoppel should not be invoked in the present case because the state district court used a lesser standard of proof. We think the state court judgment in the instant case measures up to the test laid down in In re Wallace. The state court in its opinion and judgment held, inter alia, that Tsamasfyros had breached his fiduciary duty to Nelson and that his breach was attended by fraud and recklessness. The issue was actually and necessarily litigated in the state court proceeding. Therefore, under Brown and In re Wallace, the principle of collateral estoppel precludes Tsamas-fyros from relitigating the same matter. We reject any suggestion that because Tsamasfyros appeared pro se in the state court proceeding, collateral estoppel is in-apposite. Tsamasfyros initially had counsel, but because of a possible conflict of interest counsel felt he should no longer represent Tsamasfyros. Tsamasfyros was given an opportunity to obtain new counsel, which he did not, or could not, do. And his counsel apparently was present at the trial to offer assistance on a standby basis. In any event, the fact that a bankruptcy debt- or appeared pro se in a prior state court proceeding does not lessen the collateral effect of the state court judgment. Klemens v. Wallace, 62 B.R. 91, 92 (D.N.M.1986), affirmed under In re Wallace, 840 F.2d 762, 765 (10th Cir.1988) (Wallace could not complain that he was denied a full and fair opportunity to present his case or litigate the relevant issues). Tsamasfyros also argues that the state court used an erroneous standard in fixing Nelson’s damages resulting from Tsamas-fyros’ fraudulent breach of his fiduciary duty at $162,500.92. We reject that argument as did the district court. Nelson’s claim against Tsamasfyros is grounded on a judgment which he obtained in state court, after trial. Tsamasfyros did not appeal the state court’s judgment, either on its merits or on the amount of damages. Under the principle of collateral estoppel, Tsamasfyros is precluded from relitigating either in his bankruptcy proceeding. Judgment affirmed. . It should be noted that at least part of the" }, { "docid": "6581602", "title": "", "text": "more liberal view of § 523(a)(2), however, actions that result in financial benefit to the debtor are sufficient to bring into play § 523(a)(2). See, e.g., Bates v. Winfree (In re Winfree), 34 B.R. 879 (Bankr.M.D.Tenn.1983) (debtor who was shareholder, officer and director of corporation violated section by using false financial statement to induce creditor to make loan to corporation); see generally 3 Collier on Bankruptcy ¶ 523.08[1], [2] (L. King 15th ed. 1990). I affirm the bankruptcy court’s ruling on collateral estoppel, but apply it to Nelson’s § 523(a)(4) claim for breach of fiduciary duty, and not the § 523(a)(2)(A) claim for property obtained by misrepresentation. The state court’s decision was decided under the correct evidentiary standard, since the court expressly found evidence of breach of fiduciary duty beyond a reasonable doubt. Likewise, the fact that monetary damages were awarded on the breach of fiduciary duty counterclaim, and not the misrepresentation counterclaim, makes § 523(a)(4) the more logical Code section under which to hold Tsamasfyros’ debt to Nelson nondischargeable. It also eliminates the problem of whether Tsamasfyros received money, property, services or credit from Nelson as a result of misrepresentations, since § 523(a)(4) contains no similar requirement. B. Amount of Damages. Tsamasfyros’ second argument is that the bankruptcy court “use[d] the wrong standard in determining the amount of damages awarded to the Plaintiff[ ].” Brief of Appellant at 21. Tsamasfyros contends that the state court judgment of $162,500.92, representing the decrease in value of Nelson’s interest in the partnership, was an incorrect measure of damages. Instead, he argues that “if this matter were to be tried, the evidence would show that Nelson’s total investment into the Arapahoe Medical Associates partnership was $30,976.94,” id., and that this is the better measure of Nelson’s actual loss. Therefore, he claims that the state court’s award of damages should be modified to reflect this error. Tsamasfyros’ argument misconstrues the effect of § 523 of the Bankruptcy Code and the purpose behind the application of the doctrine of collateral estoppel. In this case, the function of § 523 is not to award damages to" }, { "docid": "3087535", "title": "", "text": "is that the debtor-defendant, in the previous proceeding, had ample opportunity to present and argue his case. However, as recognized by the district court, the debtor-defendant engaged in serious obstructive behavior, including absconding with an original transcript of the debtor-defendant’s deposition, which disrupted the judicial proceedings, despite continuous warnings from the judge. The fact that the debtor-defendant did not present all of the arguments which he might have wanted to be considered by the trial court is completely the fault of the debtor-defendant. This court cannot, and will not, reward the debtor-defendant for his misconduct by providing him with a second opportunity to litigate his claim. It is illuminating to this court that the debtor-defendant does not dispute the fact that he engaged in this obstructive behavior. Thus, as there exists no genuine issue of material fact concerning the debtor-defendant’s behavior and the subsequent granting of the default judgment by the district court, this court concludes that the second element of the test for the application of collateral estoppel has been met. Therefore, this court concludes that all the tests for the application of collateral estoppel have been met. Thus, collateral estoppel is applicable and the debtor-defendant will not be permitted to relitigate the issue of fraud. As the issue of fraud on the part of the debtor-defendant will not be permitted to be relitigated, as a matter of law, this court holds that the debt falls within the exception to discharge under 11 U.S.C. § 523(a)(2)(A) & (B). Thus, the debt of the debtor-defendant to the plaintiff is ordered to be excepted from discharge. The debtor-defendant also raises the issue that collateral estoppel should not be allowed because he was acting pro se in the previous proceeding. This court does not accept debtor-defendant’s argument and directs the debtor-defendant’s attention to the fact that the district court continuously advised the debtor-defendant to obtain counsel, which he refused to do. Thus, in accordance with well-established decisions in this circuit, this court rejects debtor-defendant’s argument. See Nelson v. Tsamasfyros (In re Tsamasfyros), 940 F.2d 605 (10th Cir.1991). The debtor-defendant also argues that" }, { "docid": "19256519", "title": "", "text": "supporting affidavits demonstrating that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. The Plaintiff here seeks to do so upon the record, particularly the Settlement, Confession and the State Court Judgment. While the determination of whether a debt is dischargeable under section 523(c) is exclusively within the province of the bankruptcy court, Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 658, 112 L.Ed.2d 755 (1991) citing Brown v. Felsen, 442 U.S. 127, 129-130, 136, 99 S.Ct. 2205, 2209-2209, 2211, 60 L.Ed.2d 767 (1979), the facts which may form the basis for such a determination may be litigated in state court. In re Tsamasfyros, 940 F.2d 605, 606-607 (10th Cir.1991) citing In re Wallace, 840 F.2d 762, 764-765 (10th Cir.1988). The doctrine of collateral estoppel is applicable in order to preclude relitigation of factual issues. The Tenth Circuit Court of Appeals has specifically held in these actions that: Collateral estoppel is binding on the bankruptcy court and precludes relit-igation of factual issues if (1) the issue to be precluded is the same as that involved in the prior state action, (2) the issue was actually litigated by the parties in the prior action, and (3) the state court’s determination of the issue was necessary to the resulting final and valid judgment. In re Wallace, 840 F.2d 762, 764 (10th Cir.1988). See also, In re Tsamasfyros, 940 F.2d 605, 606-607 (10th Cir.1991); In re Mueller, 34 B.R. 869 (Bankr.D.Colo.1983); In re Austin, 93 B.R. 723 (Bankr.D.Colo.1988). This case involves not findings of fact and conclusions of law made by a court after a trial before it but a stipulation between the parties to litigation, a confession of judgment and an order entered pursuant to the terms of the confession of judgment. Confessions of judgment have been recognized as forming a basis for collateral estoppel as to the facts stipulated to. In re Hansen, 131 B.R. 167 (D.Colo.1991) aff'd by 977 F.2d 595 (10th Cir.1992). Debtor only tacitly attacks the elements which must be found for collateral estoppel" }, { "docid": "16870330", "title": "", "text": "assistance on a standby basis. In any event, the fact that a bankruptcy debt- or appeared pro se in a prior state court proceeding does not lessen the collateral effect of the state court judgment. Klemens v. Wallace, 62 B.R. 91, 92 (D.N.M.1986), affirmed under In re Wallace, 840 F.2d 762, 765 (10th Cir.1988) (Wallace could not complain that he was denied a full and fair opportunity to present his case or litigate the relevant issues). Tsamasfyros also argues that the state court used an erroneous standard in fixing Nelson’s damages resulting from Tsamas-fyros’ fraudulent breach of his fiduciary duty at $162,500.92. We reject that argument as did the district court. Nelson’s claim against Tsamasfyros is grounded on a judgment which he obtained in state court, after trial. Tsamasfyros did not appeal the state court’s judgment, either on its merits or on the amount of damages. Under the principle of collateral estoppel, Tsamasfyros is precluded from relitigating either in his bankruptcy proceeding. Judgment affirmed. . It should be noted that at least part of the rationale for adopting the “preponderance of the evidence\" standard in Grogan was that “application of that standard will permit exception from discharge of all fraud claims creditors have reduced to judgment,” thereby effectively broadening the application of collateral estoppel in cases such as the present one. Grogan at -, 111 S.Ct. at 661. . The state court concluded that Tsamasfyros owed Nelson a fiduciary duty of loyalty, good conduct and fair dealing, and that he had breached this fiduciary duty in numerous ways including: giving himself favorable leases with AMA; paying himself a developer’s fee; using AMA loan proceeds to pay off a personal mortgage; filing involuntary bankruptcy against the wishes of other partners; paying himself a real estate commission for performing partnership business; loaning partnership money to himself; and submitting a personal guarantee with his and Nelson’s signatures without Nelson’s knowledge that it had not been signed and approved by all partners. .We agree with the district court that the dis-chargeability of Nelson’s judgment debt more properly comes under 11 U.S.C. § 523(a)(4) (a" }, { "docid": "18539373", "title": "", "text": "absence of detailed findings by a trial court). However, because the pleadings in the state court action were not submitted, we are unable to determine if the underlying facts necessary to warrant an exception to discharge were included. Therefore, the only finding supported by the evidence before this court is that the prior litigation has preclusive effect as to the claim and the amount of damages to which AMEX-TRS is entitled. Debtor also contends that no preclu-sive effect should be given to the state court judgment because debtor did not have a full and fair opportunity to litigate as he did not have the benefit of legal counsel in the first litigation. A single Eighth Circuit case is relied upon by debtor. In re Chinnery, 181 B.R. 954, 963-64 (Bankr.W.D.Mo.1995) (pro se debtor did not have full and fair opportunity to litigate issue of fraud in prior district court action resolved by consent and stipulation). However, other courts have rejected the argument that the choice or failure of a debtor to obtain legal counsel during a prior adjudication prohibits application of collateral estoppel to the issues resolved therein. In re Tsamasfyros, 940 F.2d 605, 607 (10th Cir.1991) (collateral estoppel effect of state court judgment not lessened where debtor appeared pro se in prior case). Rather, courts look to whether debtor’s due process rights were observed in that he was afforded full and fair opportunity to litigate the issue. See, e.g., Klemens v. Wallace, 62 B.R. 91, 92 (D.N.M.1986) aff'd In re Wallace, 840 F.2d 762 (10th Cir.1988). See, also, In re Bush, 62 F.3d 1319, 1323 (11th Cir.1995) (an issue is actually or fully litigated in the prior action where the issue was raised and the losing party had “a fair opportunity procedurally, substantively and evidentially” to defend against the allegations (quoting Overseas Motors, Inc. v. Import Motors Ltd., 375 F.Supp. 499, 515 (E.D.Mich.1974), aff'd 519 F.2d 119 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 304 (1975)). In the ease before the court, the debtor’s due process rights were fully protected in the state court" }, { "docid": "16300276", "title": "", "text": "that the choice or failure of a debtor to obtain legal counsel during a prior adjudication prohibits application of collateral es-toppel to the issues resolved therein. See Nelson v. Tsamasfyros (In re Tsamasfyros), 940 F.2d 605, 607 (10th Cir.1991) (“We reject any suggestion that because [debtor] appeared pro se in the state court proceeding, collateral estoppel is inappo-site.”). Here, Debtor had both the incentive to pursue the issue and the opportunity to be heard in the prior Probate Court proceeding. In fact, Debtor tendered evidence validating $13,421.69 of the $67,160.10 expended. Thus, I hold that the fact that Debtor was unrepresented in the prior Probate Court action has no effect on its binding nature in the current adversary proceeding. Conclusion Debtor contends that she can prove that all of the expenditures of Brook’s funds were authorized. However, the principle of collateral estoppel and the requirement that this Court give full faith and credit to the findings of the Glynn County Probate Court preclude this Court from the hearing such evidence. As a general rule, if a debtor is unsatisfied with a judgment which might bind the debtor in later proceedings, the remedy is an action seeking relief from that judgment, not re-litigation of the matter in another court. Thus, if Debtor truly believes that the judgment should be eliminated or reduced, Glynn County is the proper forum, not this bankruptcy court. Because no genuine issue of material fact remains, it is appropriate to grant Plaintiffs’ motion for summary judgment. ORDER Pursuant to the foregoing, IT IS THE ORDER OF THIS COURT that Greg and Rene Clark’s Motion for Summary Judgment is GRANTED. The damages awarded by the Probate Court of Glynn County against Helen R. Sanders are excepted from discharge." }, { "docid": "16870328", "title": "", "text": "court used a different standard of proof than the one required in determining dischargeability under 11 U.S.C. § 523. Counsel claimed that the state district court used a “preponderance of the evidence” standard, whereas the standard for dischargeability under 11 U.S.C. § 523 is “clear and convincing evidence.” Both the bankruptcy court and the district court rejected this argument because each was of the view that the state court actually used a “beyond a reasonable doubt” standard, which was an even higher standard than the “clear and convincing evidence” standard. Be that as it may, subsequent to the judgment of the district court, the Supreme Court has since resolved this matter in Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In Grogan, the Supreme Court held that a “preponderance of the evidence” standard, rather than a “clear and convincing evidence” standard, applies to all exceptions to the dischargeability of debts set forth in 11 U.S.C. § 523, including the non-dischargeability for fraud provision. At oral argument, counsel recognized that Grogan had resolved his argument that collateral estoppel should not be invoked in the present case because the state district court used a lesser standard of proof. We think the state court judgment in the instant case measures up to the test laid down in In re Wallace. The state court in its opinion and judgment held, inter alia, that Tsamasfyros had breached his fiduciary duty to Nelson and that his breach was attended by fraud and recklessness. The issue was actually and necessarily litigated in the state court proceeding. Therefore, under Brown and In re Wallace, the principle of collateral estoppel precludes Tsamas-fyros from relitigating the same matter. We reject any suggestion that because Tsamasfyros appeared pro se in the state court proceeding, collateral estoppel is in-apposite. Tsamasfyros initially had counsel, but because of a possible conflict of interest counsel felt he should no longer represent Tsamasfyros. Tsamasfyros was given an opportunity to obtain new counsel, which he did not, or could not, do. And his counsel apparently was present at the trial to offer" }, { "docid": "3087527", "title": "", "text": "147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); See also United States v. Stauffer Chemical Company, 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984); Tway v. Tway (In re Tway), 161 B.R. 274 (Bankr.W.D.Okla.1993). As a general rule, the bankruptcy courts have been permitted to grant issue preclusion to previously decided factual issues. Heiser v. Woodruff, 327 U.S. 726, 736, 66 S.Ct. 853, 90 L.Ed. 970 (1946); Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); Kelly v. Robinson, 479 U.S. 36, 48 n. 8, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986); Lombard v. Axtens (In re Lombard), 739 F.2d 499, 502 (10th Cir.1984). See also Tway v. Tway (In re Tway), 161 B.R. 274 (Bankr.W.D.Okla.1993). The applicability of collateral estoppel to discharge exception proceedings in bankruptcy cases has been specifically recognized. Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). See also Klemens v. Wallace (In re Wallace), 840 F.2d 762 (10th Cir.1988); Nelson v. Tsamasfyros (In re Tsamasfyros), 940 F.2d 605 (10th Cir.1991); Tway v. Tway (In re Tway), 161 B.R. 274 (Bankr.W.D.Okla.1993). Thus, to determine whether issue preclusion should be applied, this court must examine three questions: 1) is the issue to be precluded the same as the issue in the previous action? 2) was the issue to be precluded actually litigated in the previous action? and 3) was the previous court’s determination of the issue necessary to the resulting final and valid judgment? Wallace, 840 F.2d at 765; Tsamasfyros, 940 F.2d at 605; Tway, 161 B.R. at 277-78. Whether an issue has been actually litigated has been subject to various interpretations by the courts. Actual litigation, in the Tenth Circuit, seems to include a full and fair opportunity to present one’s case concerning the issues. See Lombard v. Axtens (In re Lombard), 739 F.2d 499, 502 (10th Cir.1984). See also Wallace, 840 F.2d at 765; Tsamasfyros, 940 F.2d at 607. These decisions present the strong" }, { "docid": "6581603", "title": "", "text": "of whether Tsamasfyros received money, property, services or credit from Nelson as a result of misrepresentations, since § 523(a)(4) contains no similar requirement. B. Amount of Damages. Tsamasfyros’ second argument is that the bankruptcy court “use[d] the wrong standard in determining the amount of damages awarded to the Plaintiff[ ].” Brief of Appellant at 21. Tsamasfyros contends that the state court judgment of $162,500.92, representing the decrease in value of Nelson’s interest in the partnership, was an incorrect measure of damages. Instead, he argues that “if this matter were to be tried, the evidence would show that Nelson’s total investment into the Arapahoe Medical Associates partnership was $30,976.94,” id., and that this is the better measure of Nelson’s actual loss. Therefore, he claims that the state court’s award of damages should be modified to reflect this error. Tsamasfyros’ argument misconstrues the effect of § 523 of the Bankruptcy Code and the purpose behind the application of the doctrine of collateral estoppel. In this case, the function of § 523 is not to award damages to a creditor, but to determine whether a pre-existing debt should be declared non-dischargeable. The debt is represented by the state court judgment, and if that judgment is given preclusive effect in a nondischargeability proceeding, the state court’s calculation of damages cannot be collaterally attacked in the bankruptcy court. See Audio Visual Sys., Inc. v. Hopper, 71 B.R. 67, 68 (Bankr. D. Colo. 1987). Tsamasfyros did not appeal the state court’s ruling on damages in that forum, and he cannot challenge the correctness of that ruling here. IT IS ORDERED that the bankruptcy court is affirmed. . Tsamasfyros makes two additional contentions in arguing the above points. He alleges that he was prejudiced in the state court proceeding because he appeared pro se, and that the record of the state court proceedings transmitted to the bankruptcy court was inaccurate and improperly verified. Neither contention has merit. \"The fact that the appellant appeared pro se does not lessen the collateral effect of the state court judgment.\" Klemens v. Wallace, 62 B.R. 91, 92 (D.N.M.1986), aff'd, 840 F.2d" }, { "docid": "16870324", "title": "", "text": "had obtained in state court against Tsamasfyros. Attached to the complaint was the 22-page opinion of the state district court setting forth its findings, conclusions and judgment in con siderable detail. The gist of Nelson’s complaint was that his judgment debt against Tsamasfyros was non-dischargeable in bankruptcy under the provisions of 11 U.S.C. § 523. By answer, Tsamasfyros contended that Nelson’s judgment debt against him was dischargeable in bankruptcy. Thereafter, Nelson filed a motion for summary judgment, to which Tsamasfyros filed a response in opposition. The basis for Nelson’s motion for summary judgment was that because the state district court’s judgment was based, in part, on its determination that Tsamasfyros fraudulently breached his fiduciary duty to Nelson, the judgment debt was non-dischargeable under 11 U.S.C. § 523, and that Tsamasfyros was collaterally estopped from contending otherwise. On May 1, 1989, the bankruptcy judge filed an 8-page Memorandum and Order in which he held that Nelson’s judgment debt against Tsamasfyros was non-dischargea-ble in the latter’s bankruptcy proceeding under the provisions of 11 U.S.C. § 523(a)(2)(A). Pursuant to 28 U.S.C. § 158(a), Tsamasfyros appealed the judgment of the bankruptcy court to the district court. On review, the district court affirmed the result reached by the bankruptcy court, although it concluded that Nelson’s judgment debt was “more logically” non-dis-chargeable under 11 U.S.C. § 523(a)(4) rather than under 11 U.S.C. § 523(a)(2)(A). The district court’s Memorandum Opinion and Order now appears as In re Tsamasfy-ros, 114 B.R. 721 (D.Colo.1990). Background facts detailed there will not be repeated here. Pursuant to 28 U.S.C. § 158(d), Tsamasfyros seeks our review of the district court’s judgment and order. As indicated, the issue is whether the state district court judgment should be given preclusive effect in the bankruptcy proceeding. In other words, was Nelson’s judgment debt properly determined on summary judgment to be non-dischargea-ble under 11 U.S.C. § 523 on the grounds of collateral estoppel? In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the Supreme Court held that, insofar as res judi-cata is concerned, a bankruptcy court is not confined to a" }, { "docid": "3087528", "title": "", "text": "v. Wallace (In re Wallace), 840 F.2d 762 (10th Cir.1988); Nelson v. Tsamasfyros (In re Tsamasfyros), 940 F.2d 605 (10th Cir.1991); Tway v. Tway (In re Tway), 161 B.R. 274 (Bankr.W.D.Okla.1993). Thus, to determine whether issue preclusion should be applied, this court must examine three questions: 1) is the issue to be precluded the same as the issue in the previous action? 2) was the issue to be precluded actually litigated in the previous action? and 3) was the previous court’s determination of the issue necessary to the resulting final and valid judgment? Wallace, 840 F.2d at 765; Tsamasfyros, 940 F.2d at 605; Tway, 161 B.R. at 277-78. Whether an issue has been actually litigated has been subject to various interpretations by the courts. Actual litigation, in the Tenth Circuit, seems to include a full and fair opportunity to present one’s case concerning the issues. See Lombard v. Axtens (In re Lombard), 739 F.2d 499, 502 (10th Cir.1984). See also Wallace, 840 F.2d at 765; Tsamasfyros, 940 F.2d at 607. These decisions present the strong implication that a trial, itself, need not necessarily be held for an issue to be actually litigated for the purposes of collateral estoppel. However, other decisions provide additional guidance on this question. For example, a consent judgment, entered without a trial, has been recognized to have issue preclusive effect. See Tway, 161 B.R. at 278 n. 13 (recognizing Klingman v. Levinson, 831 F.2d 1292 (7th Cir.1987); Frank v. Daley (In re Daley), 776 F.2d 834 (9th Cir.1985); Halpern v. First Georgia Bank (In re Halpern), 810 F.2d 1061 (11th Cir.1987) as all holding that consent judgments have preclusive effect in bankruptcy cases). However, there must have been a full and fair opportunity for the issue to have been presented. But a default judgment is different than a consent judgment. The general rule is that a default judgment will not be granted preclusive effect. An example of the underlying reasons for this general rule is because of the possibility that the default judgment is merely accepted by the losing party because the amount at stake is" }, { "docid": "6581595", "title": "", "text": "findings of fact and conclusions of law. The court found for Nelson on his breach of partnership agreement, breach of fiduciary duty, and misrepresentation claims, awarding damages in the amount of approximately $169,000 and other relief. On the negligence claim, it held that Tsamasfy-ros was negligent, but that Nelson had not established that this negligence was the cause of his damages. The court ruled against Nelson on his fraud claim, finding insufficient evidence of fraudulent intent. As for Tsamasfyros, the court awarded Tsamasfyros damages for certain excess capital contributions he made to the partnerships, but denied his claim against Nelson for payment on the note. Tsamasfyros filed for bankruptcy under Chapter 7 on May 9, 1988. Nelson then brought the instant action to have Tsamas-fyros’ judgment debt to him declared non-dischargeable under §§ 523(a)(2), 523(a)(4) and 523(a)(6) of the Bankruptcy Code. On November 29,1988, Nelson moved for summary judgment, claiming that the state court judgment should be given preclusive effect in the nondischargeability action. After a hearing, the bankruptcy court granted the motion. The court held that the state judge’s specific findings as to Tsamasfyros’s misrepresentations justified the application of collateral estoppel on Nelson’s § 523(a)(2) claim. It therefore found it unnecessary to rule on Nelson’s §§ 523(a)(4) and 523(a)(6) claims. Tsamas-fyros now appeals this ruling. II. Issues. A. Collateral Estoppel Effect of State Court Judgment. The parties agree that in this Circuit Klemens v. Wallace (In re Wallace), 840 F.2d 762 (10th Cir.1988), governs application of the doctrine of collateral estoppel in bankruptcy proceedings. Under In re Wallace, collateral estoppel is binding on the bankruptcy court and precludes relitigation of factual issues if (1) the issue to be precluded is the same as that involved in the prior state action, (2) the issue was actually litigated by the parties in the prior action, and (3) the state court’s determination of the issue was necessary to the resulting final and valid judgment. Id. at 765. Tsamasfyros challenges only the first element above: whether the issue to be precluded was the same as that involved in the prior state action. He" } ]

[ { "docid": "22627299", "title": "", "text": "of six enumerated harms. The 1974 version of Exemption 7(D) protected “‘investigatory records compiled for law enforcement purposes [the production of which] would . . . disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation,... confidential information furnished only by the confidential source.’ ” Id., at 622. Congress adopted the current version of Exemption 7(D) in 1986. The 1986 amendment expanded “records” to “records or information,” replaced the word “would” with the phrase “could reasonably be expected to,” deleted the word “only” from before “confidential source,” and clarified that a confidential source could be a state, local, or foreign agency or a private institution. See 5 U. S. C. § 552(b)(7)(D). Under Exemption 7(D), the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential. According to the Conference Report on the 1974 amendment, a source is confidential within the meaning of Exemption 7(D) if the source “provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.” S. Rep. No. 93-1200, at 13. In this case, the Government has not attempted to demonstrate that the FBI made explicit promises of confidentiality to particular sources. That sort of proof apparently often is not possible: The FBI does not have a policy of discussing confidentiality with every source, and when such discussions do occur, agents do not always document them. Tr. of Oral Arg. 7-8, 47-48. The precise question before us, then, is how the Government can meet its burden of showing that a source provided information on an implied assurance of confidentiality. The parties dispute two issues: the meaning of the word “confidential,” and whether, absent specific evidence to the contrary, an implied assurance of confidentiality always can be inferred from the fact that a source cooperated with the FBI during a criminal investigation. Opinion of the Court B" } ]

[ { "docid": "6760480", "title": "", "text": ". Freedom of Information Act Exemption 1 (national security), 5 U.S.C. § 552(b)(1), reads: (b) This section does not apply to matters that are— (1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.] The Executive order in effect at all times during this litigation reads in pertinent part: Sec. 1.3 Classification Categories (a) Information shall be considered for classification if it concerns: (3) foreign government information; (5) foreign relations or foreign activities of the United States; (9) a confidential source[.] (b) Information that is determined to concern one or more of the categories in Section 1.3(a) shall be classified when ... its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security- (c) Unauthorized disclosure of foreign government information, the identity of a confidential foreign source, or intelligence sources or methods is presumed to cause damage to the national security. Exec. Order No. 12,356, 47 Fed.Reg. 14,874, 14, 876 (1982). . The 63 sample documents were drawn from the 1,033 partially redacted documents, and not the 743 that had been fully withheld. However, the descriptive index, prepared by the State Department to provide basic information on the 743, allowed Bonner and the court reasonably to anticipate that the 63 documents were in fact representative of both the partially and the fully redacted groups of documents. At oral argument, Bonner’s counsel explained: COUNSEL: The 63 documents came from the about 1,000 documents that had been partly withheld. After reviewing the descriptive index, we believe that the 63 documents do present an accurate picture of the 1,700 plus documents at issue here. COURT: Then are you now saying that the government is right that the parties are in agreement and the district court correctly observed that the court’s ruling concerning the sample would apply to all the approximately 1,800 documents at issue in this case? COUNSEL: That is correct. . As noted above," }, { "docid": "16736586", "title": "", "text": "transcripts; six redacted CSRT transcripts; an unclassified version of a one-page document submitted by detainee Abu Zubaydah to the CSRT; an unclassified version of two pages of “Detainee Session Notes” prepared by the Personal Representative of detainee Majid Khan and submitted to the CSRT; a redacted version of a two-page written statement of detainee Khalid Sheikh Muhammad that was submitted to the CSRT; a redacted version of a seven-page written statement of detainee Hambali that was submitted to the CSRT; and a redacted version of a one-page written statement of detainee Bin Lap that was submitted to the CSRT. From the redacted documents, the CIA withheld all information relating to the capture, detention, and interrogation of the “high value” detainees. The ACLU filed the present action in the district court challenging the government’s withholdings. The government stood by its withholdings and filed affidavits in support of its position. The government principally relied on the affidavit of Wendy Hilton, the Associate Information Review Officer of the National Clandestine Service of the CIA, to justify the redactions as information protected by FOIA exemptions 1 and 3. See 5 U.S.C. § 552(b) (listing nine exemptions from FOIA disclosure requirements). Exemption 1 provides for the exemption of records that are: (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order. 5 U.S.C. § 552(b)(1). As applicable to the claimed exemption in this case, Executive Order 12,958, as amended, sets out eight categories of information subject to classification, including “intelligence activities,” “intelligence sources or methods,” and the “foreign relations or foreign activities of the United States.” Exec. Order No. 12,-958 § 1.4(c)-(d), 60 Fed. Reg. 19,825 (Apr. 17, 1995), as amended by Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (hereinafter “Exec. Order No. 12,958”). Exemption 3 provides for the exemption of records that are “specifically exempted from disclosure by statute,” thereby incor porating the protections of other shield statutes. 5 U.S.C. § 552(b)(3). The government moved" }, { "docid": "2903866", "title": "", "text": "Exemption 1, an agency is allowed to withhold records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order,” 5 U.S.C. § 552(b)(1)(A), (B). Here, the CIA relies on Executive Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), “which provides a detailed system for classifying documents that the government determines should be kept secret.” ACLU v. U.S. Dep’t of Def., 664 F.Supp.2d 72, 75 (D.D.C.2009). Pursuant to this Executive Order, “[information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security ... and it pertains to one or more of the following: ... (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; [or] (d) foreign relations or foreign activities of the United States, including confidential sources.” Exec. Order No. 13,526 at § 1.4. In addition, the Executive Order provides that “[i]n no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; ... or (4) prevent or delay the release of information that does not require protection in the interest of the national security.” Id. § 1.7(a). To withhold records under Exemption 1, the CIA must establish that it complied with proper procedures in classifying materials and that the withheld information falls within the substantive scope of Exec. Order No. 12,958. See Salisbury v. United States, 690 F.2d 966, 971-72 (D.C.Cir.1982). An agency invoking Exemption 1 is entitled to summary judgment on the basis of agency affidavits “if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit" }, { "docid": "22050498", "title": "", "text": "So ordered. Costs to appellees in No. 92-1615 and to appellant in No. 91-1334. . The district court granted the parties' stipulated dismissal of the FAA, the NPRC, and the Navy in February 1990. . FOIA Exemption 1 provides that the FOIA’s disclosure requirements do not apply to matters that are \"(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.\" 5 U.S.C. § 552(b)(1). The information at issue here was classified pursuant to Executive Order 12356, 47 Fed.Reg. 14874 (1982). FOIA Exemption 3 pertains to matters that are exempted from disclosure by a statute that either \"(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.\" 5 U.S.C. § 552(b)(3). The exempting statute here is 50 U.S.C. § 403(d)(3), which provides that \"the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” . For the record, that order was not issued by the Judge from whose final orders the appeal is taken. . The State Department also submitted for in camera review a document on which the State Department had redacted certain identifying information, such as the names of individuals, for personal privacy concerns pursuant to FOIA Exemption 6. . The district court’s order of November 14, 1990, also required disclosure of material contained in two other documents: (1) a single name (E.L. Johnson) contained in an FBI document dated November 20, 1961; and (2) the third full paragraph of an FBI memorandum dated July 5, 1962. The FBI requested the district court to reconsider the portion of the order regarding the July 5, 1962 memorandum, arguing that the material was exempt from disclosure under FOIA Exemption 7(D) as information obtained from a confidential source. The district court granted the FBI’s motion for reconsideration and vacated that portion" }, { "docid": "22594874", "title": "", "text": "47 Fed. Reg. 14,874 (Apr. 2, 1982), reprinted as amended in 50 U.S.C. § 435 at 121-26 (1994). Halpern invokes the more liberal standards of Executive Order 12,958, which took effect on October 14, 1995, well after the agency decisions in question. See 60 Fed.Reg. 19,825 (Apr. 17, 1995), reprinted as amended in 50 U.S.C. § 435 at 842-50 (1994 & Supp. 1 1995). The governing rule is that an agency’s decision to withhold information under FOIA is reviewed under the Executive Order upon which the classification determination was made. See Lesar v. United States Dep’t of Justice, 636 F.2d 472, 480 (D.C.Cir.1980); Diamond v. FBI, 707 F.2d 75, 78 & n. 4 (2d Cir.1983) (reviewing an agency decision under FOIA according to the terms of Executive Order 12,065 even though Executive Order 12,356 had since taken effect). Thus, Executive Order 12,356 governs the application of Exemption 1 on the instant appeal. Section 1.3(a) of Executive Order 12,-356 requires that information be considered for classified status if it concerns anyone of ten categories of sensitive material. Of those categories, four are here implicated: “(3) foreign government information; (4) intelligence activities (including special activities), or intelligence sources or methods; (5) foreign relations or foreign activities of the United States”; and “(8) cryptology.” Id. Information falling into any one of these categories will be classified if the “unauthorized disclosure [of this information] reasonably could be expected to cause damage to the national security.” Id. § 1.3(b). Once classified, information is then labeled under § 1.1(a) either (1) as “Top Secret” if the damage from unauthorized disclosure would be “exceptionally grave”; (2) as “Secret” if such damage would be “serious”; or (3) as simply “Confidential” in all other cases where disclosure could cause “damage” to the national security. Regardless of what label attaches, classification of information results in exemption from FOIA’s disclosure requirement. B. The FBI’s Vaughn Affidavit Because appellant does not challenge the procedures used to classify the redacted information, the only issue raised is whether the FBI has adequately shown that the redacted information logically falls within the classification categories established" }, { "docid": "2903865", "title": "", "text": "C.I.A., 524 F.Supp. 1290, 1292 (D.D.C.1981) (“While some of the documents shed light on the legality or illegality of CIA’s conduct, the (b)(1) or (b)(3) claims are not pretextual. Any possibility of illegal conduct on the part of the CIA does not defeat the validity of the exemptions claimed.”). B. FOIA Exemption 1 Because the Court finds that the CIA properly invoked Exemption 3 as its basis to withhold the bulk of the documents listed in the Vaughn index, it need not consider whether the withheld information also meets the criteria for classification under Exec. Order No. 12,958. Assassination Archives and Research Ctr. v. C.I.A., 334 F.3d 55, 58 n. 3 (D.C.Cir.2003) (“Because we conclude that the Agency easily establishes that the records AARC seeks are exempt from disclosure under Exemption 3, we do not consider the applicability of Exemption 1.”). Regardless, even if the CIA did not invoke Exemption 3 to withhold most of the records, the CIA still would have been justified in withholding the records by invoking Exemption 1. Pursuant to FOIA Exemption 1, an agency is allowed to withhold records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order,” 5 U.S.C. § 552(b)(1)(A), (B). Here, the CIA relies on Executive Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), “which provides a detailed system for classifying documents that the government determines should be kept secret.” ACLU v. U.S. Dep’t of Def., 664 F.Supp.2d 72, 75 (D.D.C.2009). Pursuant to this Executive Order, “[information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security ... and it pertains to one or more of the following: ... (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; [or] (d) foreign relations or foreign activities of the United States, including confidential sources.” Exec. Order No. 13,526 at § 1.4. In addition," }, { "docid": "18416217", "title": "", "text": "below. B. Exemptions 1. (b)(1) Section 552(b)(1) allows an agency to withhold materials which are: (A) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such an Executive Order. 5 U.S.C. § 552(b)(1) (1976). The FBI materials withheld pursuant to this exemption have been classified under Executive Order No. 12,065. That order states that materials are to be classified as “Secret” if release of the information “reasonably could be expected to cause serious damage to the national security,” and as “Confidential” if release of the information “reasonably could be expected to cause identifiable damage to the national security.” Executive Order No. 12,065 also provides that information may not be considered for classification unless it concerns one of seven enumerated categories, including “intelligence activities, sources or methods” and “foreign relations or foreign activities of the United States.” In its de novo review of an agency’s classification decision the Court must determine “whether the information fits within one of the seven enumerated categories and whether unauthorized disclosure of the material reasonably could be expected to cause the requisite potential harm.” Baez v. United States Dep’t of Justice, 647 F.2d 1328, 1334 (D.C.Cir.1980). Unauthorized disclosure of foreign government information and any information which would reveal the identity of a confidential foreign source is presumed to cause identifiable damage to the national security and that information is automatically classifiable. The records classified by the FBI in these cases contain foreign government information, information pertaining to intelligence activities sources or methods and information concerning the foreign relations or foreign activities of the United States. The burden is on the agency to demonstrate proper classification, yet “substantial weight” must be given to the agency affidavits. Id. at 1335. Affidavits have been provided by Gary L. Stoops in Shaw and Jesse C. House in Fensterwald, FBI Special Agents with Top Secret Classification authority and responsibility for review of the classification status of FBI information under Executive Order No. 12,065, detailing at great length the type" }, { "docid": "5040880", "title": "", "text": "prosecution and convicted of theft of government documents. See Allard v. Church of Scientology, 129 Cal.Rptr. 797 (Cal.App.1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 537 (1977); United States v. Hubbard, 474 F.Supp. 64, 70-71 (D.D.C.1979). Given Plaintiff’s “policy and history of seeking retribution against its perceived enemies,” Church of Scientology v. Bell, supra, slip op. at 4, the Exemption 6 and 7(C) claims must be upheld. Id., at 3, 4; see also Church of Scientology v. Depart- meat of Army, et al., 611 F.2d 738, 744-48 (9th Cir. 1979); Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978). Exemption 1 states that documents are exempt when they are: (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order. Executive Order 12065, which supercedes Executive Order 11652, states that documents are properly classified if their disclosure “could reasonably be expected to cause at least identifiable damage to the national security.” The Order further provides that “unauthorized disclosure of foreign government information or the identity of a confidential foreign source is presumed to cause at least identifiable damage to national security.” Foreign government information is defined as “information provided to the United States in confidence by, or produced by the United States pursuant to a written joint arrangement requiring confidentiality with, a foreign government or international organization of governments.” Thus, if material reveals (1) information provided in confidence by a foreign government, (2) information provided by the United States to a foreign government in confidence pursuant to a written agreement, or (3) a confidential foreign source, it is exempt. See Church of Scientology v. Turner, No. 75-1048 slip op. at 4 (D.D.C. Dec. 13, 1979). Twelve documents have been withheld pursuant to Exemption 1. The nine government affidavits indexing these documents reveal that six of the documents are verbatim copies of information provided in confidence by foreign governments. The other six documents contain information which, if disclosed, would reveal a confidential" }, { "docid": "12523255", "title": "", "text": "the classified status' of the disputed record.” Military Audit Project, 656 F.2d at 738 (quoting S. REP. No. 93-1200, 93rd Cong. (2nd Sess.1974), reprinted in 1974 U.S.C.C.A.N. 6290), and should remain “[mjindful that [it has] little expertise in either international diplomacy or counterintelligence operations, [and thus is] in no position to dismiss the [government’s] facially reasonable concerns.” Frugone v. CIA, 169 F.3d 772, 775 (D.C.Cir.1999). B. FOIA and PA Exemptions 1. FOIA Exemption 1 Classified information that has been properly designated as secret is exempt from disclosure under FOIA Exemption 1, 5 U.S.C. § 552(b)(1). This exemption protects information that is “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... [is] in fact properly classified pursuant to such Executive order[.]” Id. Sections 1.5(c) and 1.5(d) of Executive Order (“E.O.”) 12,958 authorize the classification of information that concerns intelligence activities, sources, methods, or foreign relations. See Exec. Order No. 12,958, 60 Fed.Reg. 19, 825 (April 17, 1995). Pursuant to section 1.2(a)(4) of the E.O., information in these categories may be classified when the appropriate original classification authority determines that unauthorized disclosure reasonably could be expected to cause damage to national security in a manner that the classification authority is able to identify and describe. When, as in this case, information is more than 25 years old, it must be exempt from automatic declassification under one or more of the categories listed in Section 3.4(b) of E.O. 12,958. Information that could be expected 'to cause damage to national security is marked “Confidential” and information that could be expected to cause serious damage to national security is marked “Secret.” 2nd Keeley Decl. ¶ 32. Ms. Keeley first determined that the documents in question were initially classified properly and so marked. These classification determinations were subsequently reviewed by the Department of Justice’s (“DOJ”) Department Review Committee (“DRC”), which concurred. Id. ¶ 33. Upon this review, however, Ms. Keeley determined that portions of the information contained in responsive documents no longer warranted classification; she declassified and released those portions unless" }, { "docid": "4995510", "title": "", "text": "CIA’s affidavits, we easily conclude that it does, and Portillo-Bartow’s objections do not alter our conclusion. B The NSA also withheld responsive documents or parts of documents from the plaintiffs pursuant to FOIA Exemptions 1 and 3. As relevant here, the NSA withheld from Kerndt one foreign intelligence report that indicated a plane crashed on the date about which she inquired but did not contain any additional pertinent information. The NSA redacted parts of eight documents it released to Larson; at her request, throughout the documents the agency noted the specific exemption applicable to each redaction. As to Henehan’s request, the agency redacted parts of thirty documents, indicating the exemption claimed by each redaction, and withheld in their entirety 137 foreign intelligence reports relating solely to Guatemalan troop movement. The agency explained that no portion of those reports was reasonably segregable and a particularized index of the reports would compromise the secret nature of the information. Finally, the NSA informed Portillo-Bartow that it could neither confirm nor deny the existence of materials responsive to her request for documents relating to the abduction of her family and potential safe houses in Guatemala because the existence dr nonexistence of materials responsive to that request was properly classified and protected by statute. 1 The NSA asserts that the documents and redactions withheld from Portillo-Bartow, Larson, Kerndt, and Henehan are exempt from disclosure under FOIA Exemption 1 because they are currently properly classified pursuant to Executive Order 12958 as concerning “foreign government information”; “intelligence activities ..., intelligence sources or methods, or cryptology”; “foreign relations or foreign activities of the United States, including confidential sources”; and “vulnerability or capabilities of systems, ... projects, [and] plans ... relating to the national security.” Exec. Order No. 12958 § 1.5(b), (c), (d), (g) (1995), as amended, by Exec. Order No. 13292 § 1.4(b), (c), (d), (g), 68 Fed.Reg. at 15,317. In its affidavit, the NSA explained that one of its central missions is “to intercept communications of foreign governments in order to obtain foreign intelligence information necessary to the national defense, national security, or the conduct of the" }, { "docid": "19004413", "title": "", "text": "therefore appropriate on the adequacy of the CIA’s Vaughn index. D. Segregability Morley notes that the district court failed to address the segregability of the withheld documents. The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). “[T]he District Court had an affirmative duty to consider the segregability issue sua sponte.” Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). Thus, “a district court clearly errs when it approves the government’s withholding of information under the FOIA without making an express finding on segregability.” PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 252 (D.C.Cir.1993). The district court’s failure to fulfill this responsibility requires a remand. E. Exemptions Exemption 1 provides that the disclosure provisions of the FOIA do not apply to matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The CIA relies on Executive Order 12,958, “Classified National Security Information,” 60 Fed.Reg. 19,825 (Apr. 17, 1995), in exempting certain material. Morley makes three points: (1) The Dorn Declaration makes only conclusory statements about national security threats under Exemption 1; (2) The passage of time since the Cold War no longer warrants protection of documents concerning the CIA’s operations in Cuba; and (3) The CIA has already released to NARA the same kind of information he seeks under the JFK Act, undercutting any potential damage to national security that the CIA currently claims. Dorn’s justification for the invocation of Exemption 1 is terse. She briefly identifies the two categories of the Executive Order under which information was classified — “intelligence activities ..., intelligence sources or methods, or cryptology” and “foreign relations or foreign activities of the United States, including confidential sources.” Dorn Deck ¶ 48. She then restates the Executive Order’s standard for classifying certain information “which reasonably could be expected" }, { "docid": "5579342", "title": "", "text": "under exemption 1 be cause they contain information about foreign governments that was communicated to our government by the foreign governments on a confidential basis, that would reveal United States intelligence sources and methods and that contains frank internal discussions of foreign relations matters. Lindstrom Aff. I at 6-9. For example, document 96 is a telegram reporting a conversation between an assistant secretary of state and a high-ranking foreign diplomat regarding Armenian terrorism. Release of the document would, in the Department’s judgment, jeopardize “reciprocal confidentiality” and damage national security. Lindstrom Aff. II at 17-18. As another example, the Department withheld document 87, which was classified pursuant to section 1.3(a)(5) of Executive Order 12,356 because it relates to “foreign relations or foreign activities of the United States.” Document 87 is a telegram from the American Embassy in Paris to the Department reporting interviews with the Turkish Ambassador to France and a leader of the Armenian National Movement. The interviews were conducted by and originally published in a Paris newspaper. The Department released the published material but it withheld one paragraph of United States Embassy comment on a sensitive issue that “would be easily misinterpreted and could cause harmful repercussions in U.S. relations.” Lindstrom Aff. II at 10. The district court found the Department’s summaries of the seven documents “adequately specific” to satisfy its burden of proof. Mem. Op. at 7; see Halperin, 629 F.2d at 148 (affidavits need to be “reasonably specific”). The court concluded that, were the Department required to be more specific, it “would be forced to breach its promises of confidentiality.” Mem. Op. at 7. Having also reviewed the descriptions of the other documents included in Lindstrom’s affidavits (relating to documents 79, 93, 94, 103 and 104), we agree with the district court that the seven documents contain confidential information that is exempt from disclosure under exemption 1. B. Exemption 3 The Department invokes exemption 3 to justify withholding document 11. Exemption 3 permits agencies to withhold documents if they are “specifically exempted from disclosure by statute,” provided the statute “(A) requires that the matters be withheld from" }, { "docid": "6760479", "title": "", "text": "Service, 802 F.2d 525, 527 (D.C.Cir.1986). . The principal component of the Vaughn index was a 143-page declaration by John Eaves, Acting Deputy Director of the Office of Mandatory Review and of the Classification and Declassification Center of the Department of State. The Eaves Declaration covered 42 of the documents. Declarations by Cecil W. Fry (Air Force), and Kathryn I. Dyer (Central Intelligence Agency), covering one document each, completed the index. . The 19 documents were initially reviewed by the State Department between August 1985 and December 1986. See Brief for Appellant at 6 n. 8. The State Department also released portions of 9 other documents from the sample of 63. Id. at 6. Our disposition regarding the 19 fully released documents applies as well to the released parts of these 9 documents. . Although the State Department withheld material under several FOIA Exemptions, Bonner’s motion for partial summary judgment challenged only excisions made pursuant to Exemption 1, the \"national security” exemption. See Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment at 6. . Freedom of Information Act Exemption 1 (national security), 5 U.S.C. § 552(b)(1), reads: (b) This section does not apply to matters that are— (1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.] The Executive order in effect at all times during this litigation reads in pertinent part: Sec. 1.3 Classification Categories (a) Information shall be considered for classification if it concerns: (3) foreign government information; (5) foreign relations or foreign activities of the United States; (9) a confidential source[.] (b) Information that is determined to concern one or more of the categories in Section 1.3(a) shall be classified when ... its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security- (c) Unauthorized disclosure of foreign government information, the identity of a confidential foreign source, or intelligence sources or methods is presumed to cause damage" }, { "docid": "14367992", "title": "", "text": "made. “The fact that a document once existed does not mean that it now exists; nor does the fact that any agency created a document necessarily imply that the agency has retained it.” Miller v. Department of State, 779 F.2d 1378, 1385 (8th Cir.1985). Thus, the fact that the plaintiff received fewer documents than he anticipated may suggest that the documents never existed; that they existed, but were somehow destroyed or lost; or that they still exist but were overlooked. However, that fact does not demonstrate that the search was unreasonable. Ill The Secret Service and FBI rely on a number of FOIA exemptions in withholding documents in part or in their entirety. Each exemption will be addressed separately- A. Exemption (b)(1): Classified Information FOIA Exemption (b)(1) permits an agency to withhold materials that are: Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy; and (b) are, in fact, properly classified pursuant to such executive order. 5 U.S.C. § 552(b)(1). Pursuant to this exemption, the FBI has withheld two documents. The first is an FBI memorandum dated January 30, 1967 concerning an investigation of Molins. The FBI asserts that the information, which has been classified “confidential,” came from an intelligence activity and that its disclosure would reveal the existence of a particular intelligence operation, allow an assessment of its areas or targets, and disclose the identity of an intelligence source. See Declaration of Special Agent Sherry L. Davis ¶¶ 12-14. The second document is a one-page FBI memorandum dated January 31, 1967 concerning an investigation of Mallen. Information in two paragraphs was designated “secret” and was given to the United States by a foreign government with the expectation that its source and substance would remain confidential. Id. at ¶¶ 15-18. Disclosure would reveal the existence of a secret working relationship between the United States and a foreign government. Id. at 18. The affidavits in support of an Exemption One claim must describe the withheld information and the justification for withholding with reasonable specificity. Abbotts v. NRC, 766" }, { "docid": "17936683", "title": "", "text": "It is certainly not the meaningful evidentiary showing the Supreme Court says is needed to undermine the presumption of good faith. 1. The FBI and DIA properly withheld records under Exemption 1. Exemption 1 protects national security information, and specifically exempts from disclosure records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The records withheld under Exemption 1 in this case are classified under section 1.4 of Executive Order 13,526, which protects, among other things, “foreign government information,” “intelligence activities [and] intelligence sources or methods,” and “foreign relations or foreign activities of the United States, including confidential sources.” 75 Fed.Reg. 707, 709 (Dec. 29, 2009). The parties do not dispute the meaning of these phrases on appeal or that Executive Order 13,526 provides classification criteria for certain records. Rather, they dispute whether the FBI and the DIA affidavits are sufficiently detailed to show that each document withheld has been properly classified. We held in Wiener that an agency must make an effort to tailor the explanation for classification to the specific document withheld. 943 F.2d at 979. In that case, a history professor sought records concerning the FBI’s investigation of John Lennon, of Beatles fame, in the 1960s and 1970s. Id. at 976-77. To justify its Exemption 1 withholdings, the FBI used “boilerplate” explanations taken from a “ ‘master’ response filed by the FBI for many FOIA requests.” Id. at 978. We concluded that the categorical approach to explaining why documents were withheld did not give the requester adequate opportunity “to argue for release of particular documents.” Id. at 979. Unless the agency is as specific as possible without thwarting Exemption l’s purpose, “the adversarial process is unnecessarily compromised.” Id. But the Supreme Court, our court, and other circuits have emphasized the importance of deference to executive branch judgments about national security secrets, and that is what is before us here. In Hunt, we held that where" }, { "docid": "6760483", "title": "", "text": "court to review the agency decision in light of post-decision changes in circumstances. Cf. Powell v. Bureau of Prisons, 927 F.2d 1239 (D.C.Cir.1991) (case remanded when court first learned on appeal that portions of manual were previously released, calling into question agency declaration that entire manual was FOIA exempt); Carlisle Tire & Rubber Co. v. United States Customs Service, 663 F.2d 210, 219 (D.C.Cir.1980) (FOIA exemption denied for portions of classified document published in Federal Register). . The record includes copies of the 19 documents as originally redacted. Next to each of the textual redactions is a marginal notation. Notation “Bl,\" for example, refers to the FOIA national security exemption, 5 U.S.C. § 552(b)(1). Notations \"A3,” \"A5,” and \"A9,” refer to Executive Order No. 12,356, 47 Fed.Reg. 14,874, 14,876 (1982), classification categories: section 1.3(a)(3) (foreign government information), (a)(5) (foreign relations), and (a)(9) (confidential source). See note 6 for the text of these provisions. The shorthand notations, when read with the redacted texts, might enable a court to judge whether the material falls within the cited category. The notations, however, fall short of explaining how disclosure of this information, when it was reviewed in 1985 and 1986, \"would [have] cause[d] the requisite degree of harm to the national security.” See King v. United States Dep't of Justice, 830 F.2d 210, 224 (D.C.Cir.1987). . The Eaves Declaration is the principal component of the State Department's extensive Vaughn index which details the exemption claims for the remaining 44 sample documents. See note 3. . The 19 fully released documents remain a part of a sample of 63 documents. To determine the error rate, the court would consider the unjustified withholdings compared to the total withholdings from all 63 documents." }, { "docid": "16736587", "title": "", "text": "as information protected by FOIA exemptions 1 and 3. See 5 U.S.C. § 552(b) (listing nine exemptions from FOIA disclosure requirements). Exemption 1 provides for the exemption of records that are: (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order. 5 U.S.C. § 552(b)(1). As applicable to the claimed exemption in this case, Executive Order 12,958, as amended, sets out eight categories of information subject to classification, including “intelligence activities,” “intelligence sources or methods,” and the “foreign relations or foreign activities of the United States.” Exec. Order No. 12,-958 § 1.4(c)-(d), 60 Fed. Reg. 19,825 (Apr. 17, 1995), as amended by Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (hereinafter “Exec. Order No. 12,958”). Exemption 3 provides for the exemption of records that are “specifically exempted from disclosure by statute,” thereby incor porating the protections of other shield statutes. 5 U.S.C. § 552(b)(3). The government moved for summary judgment to dispose of the ACLU’s lawsuit. On October 29, 2008, the district court granted the government’s motion, ruling that the government had complied with the ACLU’s FOIA request insofar as it was required to do so, and that it had provided sufficient support for the claimed exemptions. See A.C.L.U. v. Dep’t of Defense, 584 F.Supp.2d 19, 26 (D.D.C.2008). The ACLU appealed the district court’s decision to this court, but before the parties filed their briefs, four events caused the government to reevaluate its redactions to the requested documents. First, in January 2009, President Obama issued three executive orders: Executive Order 13,491 limiting the use of interrogation techniques to those listed in the Army Field Manual and ordering the CIA to close any detention centers it operated; Executive Order 13,492 ordering the Department of Defense to close the detention facility at Guantanamo Bay within one year; and Executive Order 13,493 establishing a taskforce to review the lawful options available to the government with respect to the apprehension, detention, and disposition of suspected terrorists." }, { "docid": "5579341", "title": "", "text": "and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). While the burden of proof is on the agency, a reviewing court “ ‘must recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosures of a particular classified record.’ ” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (quoting S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290). “Judges, moreover, lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case.” Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir.1980). Accordingly, we “ ‘accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.’ ” Military Audit Project, 656 F.2d at 738 (quoting S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290) (emphasis in Military Audit Project). The Department claims that the seven documents fall under exemption 1 be cause they contain information about foreign governments that was communicated to our government by the foreign governments on a confidential basis, that would reveal United States intelligence sources and methods and that contains frank internal discussions of foreign relations matters. Lindstrom Aff. I at 6-9. For example, document 96 is a telegram reporting a conversation between an assistant secretary of state and a high-ranking foreign diplomat regarding Armenian terrorism. Release of the document would, in the Department’s judgment, jeopardize “reciprocal confidentiality” and damage national security. Lindstrom Aff. II at 17-18. As another example, the Department withheld document 87, which was classified pursuant to section 1.3(a)(5) of Executive Order 12,356 because it relates to “foreign relations or foreign activities of the United States.” Document 87 is a telegram from the American Embassy in Paris to the Department reporting interviews with the Turkish Ambassador to France and a leader of the Armenian National Movement. The interviews were conducted by and originally published in a Paris newspaper. The Department released the published material but" }, { "docid": "23286489", "title": "", "text": "112 S.Ct. at 547. Exemption 1 FOIA Exemption 1 permits a federal agency to withhold “matters that are — (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1) (emphasis added). The FBI redacted one document in the sample pursuant to this exemption and asserted that it contains “intelligence activities ..., sources, or methods” ordered to be kept secret under Executive Order 12356 § 1.3(a)(4). Specifically, the agency used this subsection to withhold “numerical designators that are exclusively assigned to national security sources.” Peterson Declaration ¶ 6. The FBI judged that “disclosure of this information could reveal the identity of national security sources reporting foreign counterintelligence information to the FBI.” Id. ¶ 5. In determining the applicability of Exemption 1, a reviewing court should accord “substantial weight” to the agency’s affidavits regarding classified information. Patterson v. F.B.I., 893 F.2d 595, 601 (3d Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990); Halperin v. CIA 629 F.2d 144, 147-48 (D.C.Cir.1980); Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). Having examined the document in camera and in light of the Peterson Declaration, we conclude that it was properly classified under Executive Order 12356 and that the FBI therefore properly withheld the information. Exemption 2 FOIA Exemption 2 permits a federal agency to withhold materials “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2) (emphasis added). This exemption applies to “ ‘routine matters’ of ‘merely internal significance’ in which the public lacks any substantial or legitimate interest.” Lesar, 636 F.2d at 485 (quoting Rose, 425 U.S. at 370, 96 S.Ct. at 1603); see also Schwaner v. Dep’t of Air Force, 898 F.2d 793, 796 (D.C.Cir.1990). The FBI has claimed this exemption “to delete FBI symbol numbers and file numbers which are used internally by the FBI to identify confidential" }, { "docid": "5161800", "title": "", "text": "years old. Hall, 668 F.Supp.2d at 189. Since the Order, the CIA has claimed additional withholdings under exemption 1, in regard to responsive documents released after that Order. Plaintiffs argue that exemption 1 withholdings by the CIA, DOD, and NSA are improper. Hall’s Memo, of Pts. and Auth. [182] at 18. Exemption 1 protects matters that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Pursuant to Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009), information may be classified only if all of the following conditions are met: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one of more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage. Id. § 1.1(a). The phrase “damage to the national security” means “harm to the national defense or foreign relations of the United States from the unauthorized disclosure of information, taking into consideration such aspects of the information as the sensitivity, value, utility, and provenance of that information.” Id. § 6.1(i). Information may be classified either at the “top secret,” “secret,” or “confidential” level, Id. § 1.2(a), and such classified information must fall within one of the following categories: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or" } ]

[ { "docid": "22181121", "title": "", "text": "Dr. Kudrow, her treating neurologist, who confirmed that Saffon had tried a variety of pain treatments “without sustainable benefit” and that she was still “unable to tolerate sustained sitting.” MetLife referred Saffon’s appeal to Dr. Robert A. Menotti, who, like Dr. Thomas, neither examined nor interviewed her. After reading MetLife’s file, Dr. Menotti concluded that “[t]here simply is not enough objective medical findings and office notes that have continued to flow into this file, that convince this reviewer that the claimant’s self-reported headache and chronic pain syndrome has been enough to preclude her from” working. MetLife thereupon denied Saffon’s appeal: Medical information furnished reflects diagnoses including chronic headaches, chronic pain syndrome, cervical spondy-losis, cervical strain and sprain. The determination of disability is not based on the presence of diagnoses, but is based on functional ability supported by clinical evidence that would substantiate symptoms consistent with those reported by the patient and medical providers. In this determination of disability, we must take into consideration current restrictions and limitations that are supported by clinical evidence that substantiates an inability to perform the duties of your job for your own or any employer in accordance with the Wells Fargo Disability Plan. ... It is not clear what Dr. Kudrow used as a basis for [his diagnosis of your] reported limitations as we’ve not been furnished with a Functional Capacity Evaluation that would objectively measure and document your current level of functional ability. ... The MRI of April 28, 2003 documents degenerative changes [in your cervical spine], but indicates this is unchanged from the prior January 12, 2002 MRI. No progression in degeneration is documented. Prescribed medications of bextra and celexa do not appear to represent an excessive amount of medication that would result in decreased concentration levels. The frequency of pain clinic visits were noted to not be excessive to the degree that would render you unable to perform sedentary functions consistent with your own occupation. 2. Ten years ago, in Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461, 1463 (9th Cir.1997), we interpreted the ERISA regulations as calling for a “meaningful" } ]

[ { "docid": "8246509", "title": "", "text": "exhibited full weight bearing, and he could perform all movements independently. (AR at 155-57,162,175-76.) State Agency Residual Functional Capacity Assessments. Plaintiffs records also include the findings of two state agency physicians, Drs. Isabel Pico and Currie Ball, who independently reviewed plaintiffs medical records in order to assess his RFC. In December 2004, Dr. Pico completed an SSA Physical Residual Functional Capacity Assessment, a form report requiring her to check boxes indicating plaintiffs various physical limitations. In that assessment, Dr. Pico found that plaintiff could occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours within an eight-hour workday; push and/or pull to an unlimited degree; and occasionally climb, balance, stoop, kneel, crouch, or crawl. (AR at 145-47.) She found that plaintiff had no manipulative, visual, communicative, or environmental limitations. (AR at 148-49.) Moreover, Dr. Pico indicated that while she believed that plaintiffs symptoms were attributable to a medically determinable impairment, the severity or duration of the symptoms were disproportionate to the expected severity or duration on the basis of that impairment. (AR at 150.) She indicated that her opinion was based on plaintiffs complaint of low back pain, a February 2004 x-ray of plaintiffs back, which denoted early degenerative lumbar spon-dylosis, and Dr. Dennis’ October 2004 report stating that plaintiffs MRI demonstrated some lumbar spondylosis but that his neurological examination was within normal limits. (AR at 146^47.) On reconsideration, Dr. Ball, a second agency physician, affirmed this assessment. (AR at 28.) In support of his decision, he referred to the bases for the original assessment, as well as to findings in plaintiffs rehabilitation services discharge summary that although plaintiff had muscle spasms, difficulty with his gait secondary to pain, and antalgic ambulation, his range of motion and strength were normal, and his endurance was good. (AR at 181.) While noting that plaintiffs activities of daily living were restricted by his back pain, Dr. Ball nevertheless recommended that the initial RFC for light work be affirmed. (AR at 181.) Hearing Testimony. At the" }, { "docid": "15795164", "title": "", "text": "her usual occupation and her benefits under the Plan were terminated. (AR 1282.) Backman submitted a series of appeals, providing new medical records and information from her treating physicians. (AR 1305, 2001, 2037, 2043.) Unum ultimately denied Backman’s appeal as of July 14, 2014. (AR 2136.) In that final denial, Unum stated: ■ We continue to conclude your report of pain ■ and its limiting effects on your functional capacity are out of proportion to the clinical/diagnostic findings. We have taken into consideration the minimal radiologic findings, lack of electro-diagnostic abnormalities supporting rad-iculopathy, and lower extremity strength described as within normal limits. Although L3-4 spondylolisthesis may explain your report of limited sitting ability, allowing postural changes (sitting to standing) 2-3 times per hour would not preclude all sitting. This is consistent with SSA who concluded you had the functional capacity to sit for four hours per day. -As previously communicated the occupation includes a variety of duties and independence to prioritize tasks and structure work activities to allow shifting weight and/or repositioning as needed for comfort. It allows for occasional stand and stretch breaks, and supports the ability to avoid prolonged sitting with intermittent tasks requiring standing and walking. It would be appropriate in consideration of your reports of pain to limit lifting to 10-15 lbs and avoid bending/stooping/crawling. These activities are not required in the performance of your usual occupation. (AR 2138.) 6. Medical Records Submitted After December 2013 Termination Decision On December 18, 2013, shortly after the notice that Unum had terminated her benefits, Backman saw Dr. Prince, presenting with back pain and inability to sit or walk for more than 10-15 minutes and a need to lay down for 30 minutes per hour. (AR 2045.) Dr. Prince noted that Backman exhibited decreased range of motion and tenderness. (AR 2046.) Based on this, Dr. Prince extended Backman’s work modifications. (Id.) On February 14, 2014, Dr, Prince reported exacerbation of Backman’s low back pain, inability to sit or stand without pain for more than 10-15 minutes, and numbness and tingling in her legs. (AR 2047.) Dr. Prince prescribed an" }, { "docid": "23512226", "title": "", "text": "frequent car to chair transfer his work requires. These symptoms have improved following several months of leave from work. I believe, therefore, that he should avoid situations that require frequent car to chair transfers. — July 1994■ Sun Life conducted an extensive personal interview of Brigham, and the notes in the insurer’s file state that he “indicated that he would have resumed another position with his company if it did not involve being out on the road, but they had no work for him.” The notes also state that Brigham reported applying to law school and indicated an interest in earning a law degree so that, among other endeavors, he could represent individuals with disabilities. He further stated that, if law school proved too demanding, he would consider earning a teaching certificate, noting that he previously had worked as a teacher in a private school. — October 1994■ The third APS from Dr. French, dated October 12, reported that Brigham’s condition remained unchanged, but the physician increased the level of his physical impairment to Class 5, a “[s]evere limitation of functional capacity; incapable of minimal (sedentary) activity.” In the section labeled “Rehabilitation,” however, Dr. French indicated that Brigham could work despite his impairment if the job did not involve getting into and out of a car, and he recommended retraining. — November 1994 — March 1995. In a letter dated November 9, Dr. French stated that Brigham’s back pain had subsided since he had stopped working, and expressed concern that a return to his previous position — with its frequent travel— would bring it back. He again recommended that Brigham “be placed in a situation that does not require getting in and out of the car all day.” In a December conversation with a Sun Life representative, Dr. French reported that Brigham’s condition had improved and his muscle strain had resolved. A week later, Brigham told another caller from Sun Life that he hadn’t pursued either schooling or alternative work. According to Sun Life’s notes, Brigham explained that “he has difficulty mobilizing himself and [his] wheelchair for extended periods during" }, { "docid": "18045843", "title": "", "text": "file Dr. Nager’s assessment, which detailed Krupp’s functional limitations, as well as evidence from nine days of covert video surveillance that confirmed that she was leading an essentially inactive life. Despite this corroborative evidence and Dr. Nager’s functional limitations assessment, Dr. Carnow stated that “[Krupp’s] reports of pain of a severity to cause impairment [could] not be objectively supported by exam findings or diagnostic studies,” and that there was thus “no medical evidence to support an inability to work for an eight hour day .at the sedentary or light physical demand level.” Admin. R. at LM412. Dr. Pasquale similarly dismissed Krupp’s pain, fatigue, and paresthesias as “subjective” because Krupp could “sit throughout the evaluation, stand and walk upon entering and leaving the facility,” id. at LM349, a conclusion that “[fails] to consider the difference between a person’s being able to engage in sporadic activities and her being able to work eight hours a day five consecutive days of the week.” Diaz, 499 F.3d at 648 (internal quotation marks omitted). Even Dr. Willis’s file review summarily concluded that because “[Krupp’s] \"pain and fatigue are vague,” they did not support her diagnoses. Admin. R. at LM126. Because none of Liberty Life’s three consulting physicians considered how Krupp’s pain might interfere with her ability to' perform her job and thus failed to consider a relevant aspect of Krupp’s medical condition, Liberty Life’s reliance on their opinions was arbitrary. b. Social Security disability finding Krupp argues that Liberty Life arbitrarily failed to take.into account the SSA’s determination that she was disabled in making its decision to terminate .her long-term disability benefits. Although an administrator is not bound by a Social Security determination of disability, an administrator’s failure to consider such determination in making its own benefit decisions suggests arbitrary decision making. Holmstrom, 615 F.3d at 772-73. In this case, the SSA determined that Krupp was completely disabled as of November 15, 2008 due to cervical myelopathy, Chiari malformation, autonomic dysfunction, and peripheral neuropathy. The ALJ found that although Krupp was capable of performing light work from time to time, she was nonetheless “unable to" }, { "docid": "11450373", "title": "", "text": "than one hour during an eight-hour period and from sitting for more than thirty minutes in any given hour. See ML 0248. Dr. Hill also stated that he had not advised Ms. Leger to return to work because she was “wheel chair bound[,] essentially unable to walk.” Id. at 0246. These materials, as well as Ms. Leger’s medical history, were provided to Dr. Kevin Smith for review. In his report, Dr. Smith stated: The medical records do not indicate objective clinical evidence on examination and testing, surgical report, diagnoses or pathology of a severity that would preclude her from gainful employment within a wide array of jobs within a sedentary work capacity level. The medical records are confusing in that she was very pleased with the surgical results on the January 2005 office visit and was noted to be wheelchair bound and unable to stand for more than 1 hour in an 8-hour time period per APS statements in late March of 2005. The records indicate significant osteoarthritis of the knees but do not indicate findings or impairments of a severity that would preclude sedentary work in this 44-year-old employee. ML 1786. Grace Choi, a vocational rehabilitation consultant, conducted an employability assessment based on Dr. Smith’s evaluation. The assessment identified several sedentary employment positions for which Ms. Leger possessed the necessary qualifications. Met Life therefore determined that Ms. Leger was capable of performing sedentary work and terminated her benefits on October 12, 2005. See ML 1778-79. Ms. Leger appealed the decision internally and supplied Met Life with additional personal information, witness statements and medical documentation. She also submitted a Functional Capacity Evaluation (“FCE”), which was prepared by a physical therapist, Joseph Rappa, on February 22, 2006. In the FCE, Rappa indicated that Ms. Leger had exerted full effort during the tests and that her subjective reports of pain and associated disability were both reasonable and reliable. ML 0482, 0459. In his recommendations, Rappa wrote: It is recommended that clinical and/or vocational decision be made with the results of this report taken into consideration. —Avoid full/partial squat lifting. —Limit carrying for" }, { "docid": "15189796", "title": "", "text": "the IME performed by Dr. Bernhard. (AR SA/PRU 460-64). Dr. Bernhard opined that Adams was unable to perform his job due to left elbow and left knee instability, along with problems associated with his ankle reconstruction. (AR SA/PRU 462). However, he determined that Plaintiff was capable of performing light duties “such as sit-down work, as well as nonweightbearing type of activities.” Id. Dr. Bernhard also listed several restrictions, including a fifteen (15) pound lifting limit, the inability to climb ladders or do frequent use of stairs, and could stand for only one-hour along with frequent breaks. (AR SA/PRU 462-68). Dr. Bernhard concluded that Adams could “resume work at a clerical-type position with sit-down work for the majority of his day.” (AR SA/PRU 464). On September 24, 2001, Plaintiff sent Prudential a letter appealing its decision, which provided a substantial amount of supplemental material. Adams asserted that “the pain medication necessary to maintain a minimal amount of functioning is in itself limiting and could be considered dangerous in a work environment.” (AR SA/PRU 167). Adams maintained that Defendant should consider that he is dependent on narcotic pain medication that impacts both his physical and mental capacity to work, and that he suffers from chronic pain. (AR SA/PRU 175-76). Dr. McDonnell also sent a letter, dated October 21, 2001, in support of Plaintiffs appeal stating: Please consider the following. This gentleman is a very active young man who is raising a family and had an excellent work history up until his injury. He has significant and disabling problems with his ankle and foot that remains to this day very painful.... We have had to use Neurontin as recommended by the Pain Management Clinic at Medical College of Ohio. This young man takes Zoloft as recommended by his personal physician, Dr. Ben Ball. Sam’s depression has responded very nicely to the Zoloft. Pain control has been an extremely difficult issue for this young man. He takes Oxycontin and as well Demerol. He uses Demerol primarily for breakthrough pain if the Oxycontin will not control it. I am very impressed that your company feels" }, { "docid": "23512224", "title": "", "text": "developed a respiratory tract infection that triggered severe coughing spells, exacerbating his left side pain and forcing him to stop work. He received short-term disability benefits for six months and then in December 1993 applied for long-term benefits based on his severe back and side strain. In an Attending Physician’s Statement of Disability (“APS”) dated December 21, Dr. Christopher French opined that Brigham was unable to perform his own job because “the stress of frequent transfer from [his] car [is an] intolerable physical symptom.” He characterized Brigham’s physical impairment as “Class 4” out of five levels of progressively more limited physical capacity, signifying a “[m]oderate limitation of functional capacity; capable of clerical/administrative (sedentary) activity.” Although Dr. French stated that Brigham was totally disabled, he also observed that he was a “good candidate for more sedentary work but to do this he must get retraining.” Brigham graduated from both Williams and Amherst colleges and holds a master’s degree. In February 1994, Sun Life approved the payment of the first stage of long-term disability benefits under the “own occupation” provision. He received those benefits until December 1998, when the sixty months of coverage ran out, although Sun Life temporarily cancelled benefits in January 1995 based on its belief that Brigham could at that point return to his regular job. Brigham appealed, and after further investigation, Sun Life reinstated the “own occupation” benefits in March 1995. During the five years in which Brigham received long-term disability payments, Dr. French submitted at least six additional APS reports after the one filed in support of the original application for benefits. Because this case turns on the sufficiency of the evidence of Brigham’s ability to work, we have closely reviewed the medical information contained in the record. We summarize below Dr. French’s reports during the relevant five-year period and review other details surrounding Brigham’s receipt of benefits. — March 1994- In response to a request from Sun Life for updated information, Dr. French sent a letter dated March 31 that stated: [Brigham] is a paraplegic who had developed left side and hip pain secondary to [the]" }, { "docid": "23512246", "title": "", "text": "address several particular challenges to the insurer’s decision-making. A. Evidence in the Record Unquestionably, the most significant evidence in the record is the series of Attending Physician Statements from Dr. French. In each report before the last two, Dr. French opined that Brigham could return to work part-time, with retraining, so long as his job did not require transfers into and out of his car. The next-to-last report, in January 1998, stated that Brigham “possibly” could resume part-time work. Only in the last report— filed after Sun Life notified Brigham that he needed to prove inability to work at any occupation — did Dr. French assert that Brigham was “not at all” capable of working on even a part-time basis. In that same APS, however, Dr. French continued to classify Brigham’s physical impairment as Class 4, seemingly indicating his ability to do sedentary work. The doctor repeated his earlier assessment that Brigham could sit 5-10 hours and drive 1-3 hours in a normal day and rated him as capable of a wide range of physical movements at least a small percentage of the time. Each APS throughout the five-year period noted that Brigham’s condition remained unchanged from the previous report. Thus, Dr. French’s medical reports did not reflect a decline in Brigham’s physical condition from the time he became disabled in 1993. Despite Sun Life’s request for objective medical evidence to substantiate the doctor’s assertion in December 1998 that Brigham no longer was capable of the sedentary work the doctor earlier had deemed feasible, no reports of any kind were submitted based on either recent examinations or clinical tests showing progressive loss of abilities. Dr. Reinert’s assessment adds little; he noted that “the gradual decline in physical capabilities which we all experience as we get older, ... superimposed on the significant disability of being paraplegic,” rendered Brigham unable to recover to his level of function before the 1992 muscle strain. But Dr. French’s reports consistently had indicated that Brigham retained at least part-time sedentary employment capabilities after his 1992 injury. And the TSA identified a number of sedentary jobs that" }, { "docid": "18045828", "title": "", "text": "the surveillance footage of Krupp walking to her mailbox. Dr. Carnow also stated that as part of his review, he had spoken with Dr. Goodman and Dr. Zahir, but not with Dr. Nager. He noted that Dr. Goodman stated that although he was treating Krupp for neuropathic leg pain, he could not provide an opinion on “her current functional status” because he had not seen her since August 2009. Dr. Zahir, who was treating Krupp for- both hematologic conditions and pain, explained that although she was not impaired by any hematologic condition, .she “was impaired by upper torso and extremity pain.” Id. at LM402. Dr. Carnow concluded that although the medical evidence supported Krupp’s diagnosis of cervical spinal steno-sis and iron deficient anemia, it did not support an inability to work an eight-hour work day at the sedentary level. ■ On October 11, 2010, Liberty Life sent Krupp to Dr. Christopher Pasquale for an independent medical evaluation (IME). During his forty-five minute examination, Dr. Pasquale found that Krupp had a limited cervical range of motion, and he confirmed her treating physicians’ diagnoses. He concluded, however, that Krupp’s reports of pain, paresthesias, fatigue, and inability to stay out of bed were “subjective,” given that Krupp “did demonstrate the ability to sit throughout the evaluation, stand and walk upon entering and leaving the facility.” Id. at LM349. Based on his review of her medical file and his examination, Dr. Pasquale concluded that Krupp was capable of sedentary work, provided that her lifting and carrying was restricted to ten pounds, she only occasionally used a firm grasp or reached above hershoulders1, and she changed her-position when-sitting once every hour for five minutes. On November 5, 2010, Dr. Nager — who received a copy of the IME — sent Liberty Life a rebuttal letter disagreeing with Dr. Pasquale’s assessment and stating that he.did not believe Krupp . was able to perform even sedentary work. Around the same time it was investigating her long-term disability claim, Liberty Life referred Krupp to a lawyer to assist her in obtaining Social Security disability benefits. The lawyer was" }, { "docid": "13667974", "title": "", "text": "and depression. (AR 718). In response to form questions, Rosdahl made entries indicating that Oldoerp could sit continuously for six hours, stand intermittently for two hours, and walk intermittently for three. (AR 719). She could, according to Rosdahl, lift weight occasionally up to fifty pounds. Id. She would also be able to perform repetitive hand motions. Id. Rosdahl further reported that Oldoerp’s psychological functions showed slight limitations, as she could function in most “stress situations” and engage in interpersonal relations. Id. On a scale of one to five, Oldoerp was rated class two out of five, where class one represented no limitations of psychological functions. Id. Rosdahl indicated that she had advised Oldoerp to return to work “immediately” to her regular occupation on a part time basis. Id. Specifically, she reported that Oldoerp could work for twenty hours a week, five hours per day, but “breaks must be allowed.” Id. Altogether, in comparison to the APS submitted by Rosdahl on December 28, 2007, the updated report indicated that Oldoerp’s condition was somewhat improved. (AR 718-19; AR 801-02). iv. Stephen Fry- On November 11, 2007, Dr. Stephen Fry summarized self-reported symptoms from Oldoerp, who was apparently a new patient at Airpark Medical Center: “She’s been fatigued for the past 3 months. She sleeps 12-16 h. per day. She also has sore throat, neck pain. Her legs and knees muscles [sic] hurt. She had headaches, tinnitus.” (SSA 52). On December 27, 2007, he observed “she is actually starting to feel better on the [psychiatric] med and would like to continue.” (SSA 53). On January 29, 2008, Fry provided information to MetLife reporting that functional limitations related to strength, concentration, and pain were interfering with Oldoerp’s ability to work. (AR 786-88). He indicated that she was presently incapacitated and did not estimate a future date on which she could resume working. (AR 788). On February 11, 2008, he observed “she’s doing better w/ less pain and less myalgia and arthralgia.” (SSA 54). On April 3, 2008, Dr. Fry wrote a letter to MetLife stating that he believed Oldoerp suffered from myalgia, arthralgia, and" }, { "docid": "23628695", "title": "", "text": "as possible repeat surgery. A May 28, 1999, entry in Met Life’s Diary Review Report states that “both AP [Attending Physician Dr. Rice] and Dr. MacKay indicate that [Spangler] has significant restrictions and will never [return to work].” The diary review notes that Spangler was awarded social security disability benefits. The diary review also indicates that Met Life will send Spangler for a Functional Capacity Examination to “identify what limits would prevent [Span-gler] from performing her own [occupation].” On July 21, 1999, Met Life scheduled Spangler for a whole body functional capacity examination. The Functional Capacity Evaluation Summary Report, signed by Susan Ewing, a registered physical therapist for Met Life, and Brian Moore, an Industrial Medicine Coordinator, concluded: This patient demonstrates a functional capacity at the Sedentary physical demand level, which does not meet the stated job demands for her previously held position. She scored positively on most psychometric indicators for symptom magnification and a focus on pain. Both the examiner and physical therapist were limited in performing a com- píete evaluation or testing secondary to complaints of pain and inability to assume requested positions for testing. The testing showed that Spangler could sit for “14 minutes,” stand for “10 seconds,” walk “4 x 30 seconds with quad cane,” and climb “five steps with assist.” The report ultimately found Spangler disabled and stated “Data is available on file which substantiates the findings in this report.” In September 1999, Met Life asked Dr. MacKay and Spangler’s primary care physician, Dr. Mark Rice, to provide updated office notes and tests and to complete a Physical Capacities Evaluation, another form provided by Met Life. On September 14, 1999, Dr. MacKay filled out the Physical Capacities Evaluation form, which, is less detailed than the Attending Physician Statements that Dr. MacKay had previously submitted to Met Life. On the form, Dr. MacKay reported that Spangler could sit for six hours, walk for two hours, and lift and carry up to ten pounds occasionally. The report to Met Life also included Dr. MacKay’s office notes. The Physical Capacities Evaluation, unlike the Attending Physician Statement, does not" }, { "docid": "23512233", "title": "", "text": "Dr. French’s eighth and final APS followed. Once again, Dr. French described Brigham’s condition as unchanged and designated his physical im pairment as Class 4. He repeated his earlier assessment regarding Brigham’s ability to sit and drive, as well as his judgment of Brigham’s ability to twist, push, pull and reach (repeating his earlier percentage estimates, but increasing Brigham’s maximum ability to grasp objects from 33% of the day to 66% of the day). In the only other changes from the Limitation section on the January APS, he omitted any notation on Brigham’s ability to bend (one of the choices was “0%”), and checked neither “yes” nor “no” beside the entries for his ability to use his hands to grasp or manipulate with precision. He also left blank the space for Brigham’s maximum lifting capacity. In the sections on Brigham’s work capabilities and prognosis, Dr. French stated that Brigham was “not at all” capable of working within the limitations noted on the form, that he was not capable of another occupation on even a part-time basis, and that he was “permanently disabled” (emphasis in original). — January-March 1999. In response to Sun Life’s request for more medical information, Dr. French in January sent copies of his handwritten notes and other reports from his file. In March, a Sun Life medical consultant who filled out a Medical Review form referred to a few items from Dr. French’s difficult-to-read handwritten notes, including his July 1998 statement that Brigham was swimming every day and a May 1998 statement that Brigham was “finishing building [a] new house.” The consultant noted that Dr. French in June 1997 reported that Brigham was not totally disabled from any occupation but in December 1998 stated that he was permanently totally disabled. The final notation on the Medical Review form stated: “appears he’s not restricted from sedentary work.” — June-August 1999. The insurer secured a Transferable Skills Analysis (“TSA”), which was completed by a vocational counselor primarily based on Dr. French’s reports. The TSA report concluded that Brigham could perform sedentary work. Under the heading “Functional Capacities,” the report," }, { "docid": "23512254", "title": "", "text": "[contrary] evidence” not entitled to discount claimant’s doctor’s extensive evidence of severe heart disease without conducting independent medical examination). Although the final medical consultant’s report was brief, it reflected a review of the materials submitted by Brigham, particularly Dr. French’s most recent physician statements. Further medical information would have been illuminating, but it was up tu Brigham to explain why Dr. French’s quantitative assessments of his physical abilities were no longer an accurate indicator of his ability to work. IV. Conclusion The question we face in this appeal is “not which side we believe is right, but whether [the insurer] had substantial evi-dentiary grounds for a reasonable decision in its favor.” Doyle, 144 F.3d at 184. We share the district court’s sentiment that this is a difficult case because of “the obvious courage plaintiff has shown in facing his disability,” 183 F.Supp.2d at 438. ■Beyond this, it seems counterintuitive that a paraplegic suffering serious muscle strain and pain, severely limited in his bodily functions, would not be deemed totally disabled. Moreover, it seems clear that Sun Life has taken a minimalist view of the record. But it is equally true that the hurdle plaintiff had to surmount, establishing his inability to perform any occupation for which he could be trained, was a high one. As to that issue, we have to agree with the district court that the undisputed facts of record do not permit us to find that Sun Life acted in an arbitrary or capricious manner in terminating appellant Brigham’s benefits. Affirmed. . We have borrowed liberally from the well stated factual background section of the district court's opinion in this case. See Brigham v. Sun Life of Canada, 183 F.Supp.2d 427, 428-434 (D.Mass.2002). As the district court noted, see id. at 428, the facts are essentially undisputed. . The APS is a two-page standardized form provided by the insurer that includes sections on \"Diagnosis,” \"Dates of Treatment,” \"Progress,” \"Physical Impairment,” \"Prognosis,” and \"Rehabilitation.” The sections typically offer several alternative answers, with boxes to be checked for the chosen response. The form also provides general space for unguided" }, { "docid": "23512229", "title": "", "text": "Brigham responded to an inquiry from Sun Life about the impact of his disability on his daily life by stating that he is “severely limit[ed] ... in fundamental ways.” He wrote: For example, it is very painful for me to transfer from my wheelchair onto the toilet, into the bathtub, into bed, and into my car. As a result, I require assistance to perform all or part of these transfers. — October 1995. Dr. French submitted a fourth APS that reported Brigham’s condition as unchanged, but he designated Brigham’s physical impairment as both Classes 4 and 5. The doctor again described Brigham as totally disabled, but noted in the “Remarks” section that he could re-enter the workforce “with appropriate part-time job and available transportation.” — January-February 1996. Brigham reported that his daily activities remained “limited” because of muscle pain and that he was no longer able to independently transfer into or out of his current vehicle. Noting that he needed a lift-equipped van “in order to attempt to either re-enter the work force or acquire appropriate professional re-training,” he proposed that Sun Life buy out his disability coverage so that he could purchase a van as soon as possible. Brigham ultimately rejected as inadequate Sun Life’s approximately $52,000 settlement offer. — November 1996. Dr. French’s fifth APS again reported Brigham’s progress as “unchanged,” but this time he classified his physical impairment as Class 4. The doctor stated that a job modification would enable Brigham to work “[t]o some extent,” and in the “Remarks” section he wrote: “patient has use of upper body — transportation to and from a worksite would need to be addressed, as would assistance with transfers.” — June 1997. Dr. French submitted his sixth APS, in which he again checked off the boxes indicating that Brigham’s condition was unchanged and that he had a Class 4 impairment. In the impairment section, he noted that “[transferring is often painful and therefore difficult and slow. Transportation is prob.” The doctor checked neither “yes” nor “no” in the section that asked if a job modification would enable Brigham to work" }, { "docid": "23512230", "title": "", "text": "appropriate professional re-training,” he proposed that Sun Life buy out his disability coverage so that he could purchase a van as soon as possible. Brigham ultimately rejected as inadequate Sun Life’s approximately $52,000 settlement offer. — November 1996. Dr. French’s fifth APS again reported Brigham’s progress as “unchanged,” but this time he classified his physical impairment as Class 4. The doctor stated that a job modification would enable Brigham to work “[t]o some extent,” and in the “Remarks” section he wrote: “patient has use of upper body — transportation to and from a worksite would need to be addressed, as would assistance with transfers.” — June 1997. Dr. French submitted his sixth APS, in which he again checked off the boxes indicating that Brigham’s condition was unchanged and that he had a Class 4 impairment. In the impairment section, he noted that “[transferring is often painful and therefore difficult and slow. Transportation is prob.” The doctor checked neither “yes” nor “no” in the section that asked if a job modification would enable Brigham to work with his impairment. He did, however, check “no” when asked if Brigham was now totally disabled from “[a]ny other job.” — January 1998. Dr. French’s seventh APS repeated the “unchanged” condition and Class 4 impairment notations. In a section labeled “Limitations,” Dr. French reported that Brigham could sit 5-10 hours in a normal day, drive 1-3 hours, and use his hands for grasping and fine manipulating. He also listed Brigham as able to bend, twist his body, push, pull, grasp and reach between 1% and 33% of the time during the day, and stated that he could lift a maximum of ten pounds. Asked on the form whether Brigham could work within these limitations, Dr. French checked the box for “part time” and added “possibly.” He gave the same response to the question whether Brigham could work in another occupation part time. That same month, Brigham completed a “Claimant Activity Questionnaire” in which he explained that large portions of his day were consumed by eating, resting, and matters of personal hygiene. He shopped twice a" }, { "docid": "23512234", "title": "", "text": "basis, and that he was “permanently disabled” (emphasis in original). — January-March 1999. In response to Sun Life’s request for more medical information, Dr. French in January sent copies of his handwritten notes and other reports from his file. In March, a Sun Life medical consultant who filled out a Medical Review form referred to a few items from Dr. French’s difficult-to-read handwritten notes, including his July 1998 statement that Brigham was swimming every day and a May 1998 statement that Brigham was “finishing building [a] new house.” The consultant noted that Dr. French in June 1997 reported that Brigham was not totally disabled from any occupation but in December 1998 stated that he was permanently totally disabled. The final notation on the Medical Review form stated: “appears he’s not restricted from sedentary work.” — June-August 1999. The insurer secured a Transferable Skills Analysis (“TSA”), which was completed by a vocational counselor primarily based on Dr. French’s reports. The TSA report concluded that Brigham could perform sedentary work. Under the heading “Functional Capacities,” the report, received on June 15, stated: He may work five to ten hours a day without limitation on grasping and fine manipulation, and may drive from one to three hours daily. He must avoid all squatting, climbing, balancing, kneeling, and crawling. However, he may be required to occasionally bend, twist his body, push, pull, and reach. The report also noted that Brigham’s lifting limitation was ten pounds. The vocational counselor concluded that these limitations were “approximately equivalent” to the definition of sedentary work contained in the Dictionary of Occupational Titles: Sedentary Work Exerting up to 10 pounds of force occasionally [up to 1/3 of the time] ... or a negligible amount of force frequently ... to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The report identified twenty-one jobs for which Brigham was qualified, at" }, { "docid": "23512245", "title": "", "text": "to examine specifically “whether the aggregate evidence, viewed in the light most favorable to the non-moving party, could support a rational determination that the plan administrator acted arbitrarily in denying the claim for benefits.” Leahy, at 17. III. The Termination of Benefits As indicated at the outset of this opinion, we have concluded that a rational decision-maker could not find, on this record, that Sun Life lacked a reasonable basis for its determination that Brigham could return to work in a sedentary position. This conclusion is especially clear with respect to part-time work. See Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir.1998) (capacity to work part-time supports finding that claimant was not “totally disabled from any occupation”). Although we confess considerable ambivalence about whether Brigham should be expected to return to the workforce, we nonetheless believe, for the reasons that follow, that Sun Life cannot be found to have violated ERISA for reaching the decision it did. We first consider the record evidence on which Sun Life relied and then address several particular challenges to the insurer’s decision-making. A. Evidence in the Record Unquestionably, the most significant evidence in the record is the series of Attending Physician Statements from Dr. French. In each report before the last two, Dr. French opined that Brigham could return to work part-time, with retraining, so long as his job did not require transfers into and out of his car. The next-to-last report, in January 1998, stated that Brigham “possibly” could resume part-time work. Only in the last report— filed after Sun Life notified Brigham that he needed to prove inability to work at any occupation — did Dr. French assert that Brigham was “not at all” capable of working on even a part-time basis. In that same APS, however, Dr. French continued to classify Brigham’s physical impairment as Class 4, seemingly indicating his ability to do sedentary work. The doctor repeated his earlier assessment that Brigham could sit 5-10 hours and drive 1-3 hours in a normal day and rated him as capable of a wide range of physical" }, { "docid": "20850536", "title": "", "text": "findings by James’s treating physician, Dr. Webb “simply dismissed” the “opinion as insufficient based on the absence of supporting medical evidence.” Farhat, 439 F.Supp.2d at 973. While Dr. Lewis more directly addressed James’s medical history, AR 744, he ignored the opinion of James’s pain specialist that James’s chronic pain prevented her from working and reached arbitrary and capricious conclusions. He recognized that James “routinely reported chronic subjective pain,” yet he dismissed those complaints because “physical examinations have not demonstrated clinically significant abnormalities.” AR 745 (emphases added). And though Dr. Lewis acknowledged that James’s “subjective symptoms have been treated with a myriad of medications and injections, which did not appear to have any clinically significant change,” and that “objective findings suggest degenerative change,” he conclusorily asserted that such observations “do not suggest any significant abnormal pathology that would have clinically significant functional limitations particularly in the claimant’s ability to fulfill sedentary work activities.” AR 745. In other words, he conceded that her medication was not working and that there was “objective” evidence of a deteriorating condition, but he still concluded that James could work. Dr. Lewis also said that a sedentary occupation would not “cause undue levels of pain” for James despite the fact that Dr. Balytsky concluded that James could not sit for more than 15 minutes at a time without experiencing pain. AR 745. But he does not explain how he reached any of these conclusions. More troubling, the plan and its reviewing physicians also appear to have simply misstated or failed to consider crucial evidence in the record. For example, Dr. Lewis noted that James’s “[r]ange of motion was not quantified to demonstrate any significant loss” and that “the provided objective findings ... do not suggest any significant abnormal pathology that would have clinically significant functional limitations.” AR 745. Dr. Balytsky, however, has noted on multiple occasions the substantial restrictions on James’s ability to move and work. For example, on January 29, 2010, Sedgwick received a “Physical Capacities Evaluation: Sedentary” form from Dr. Balytsky. AR 176, 277-78. Dr. Balytsky reported that James would not be able to stand" }, { "docid": "23512225", "title": "", "text": "“own occupation” provision. He received those benefits until December 1998, when the sixty months of coverage ran out, although Sun Life temporarily cancelled benefits in January 1995 based on its belief that Brigham could at that point return to his regular job. Brigham appealed, and after further investigation, Sun Life reinstated the “own occupation” benefits in March 1995. During the five years in which Brigham received long-term disability payments, Dr. French submitted at least six additional APS reports after the one filed in support of the original application for benefits. Because this case turns on the sufficiency of the evidence of Brigham’s ability to work, we have closely reviewed the medical information contained in the record. We summarize below Dr. French’s reports during the relevant five-year period and review other details surrounding Brigham’s receipt of benefits. — March 1994- In response to a request from Sun Life for updated information, Dr. French sent a letter dated March 31 that stated: [Brigham] is a paraplegic who had developed left side and hip pain secondary to [the] frequent car to chair transfer his work requires. These symptoms have improved following several months of leave from work. I believe, therefore, that he should avoid situations that require frequent car to chair transfers. — July 1994■ Sun Life conducted an extensive personal interview of Brigham, and the notes in the insurer’s file state that he “indicated that he would have resumed another position with his company if it did not involve being out on the road, but they had no work for him.” The notes also state that Brigham reported applying to law school and indicated an interest in earning a law degree so that, among other endeavors, he could represent individuals with disabilities. He further stated that, if law school proved too demanding, he would consider earning a teaching certificate, noting that he previously had worked as a teacher in a private school. — October 1994■ The third APS from Dr. French, dated October 12, reported that Brigham’s condition remained unchanged, but the physician increased the level of his physical impairment to Class" }, { "docid": "20850537", "title": "", "text": "but he still concluded that James could work. Dr. Lewis also said that a sedentary occupation would not “cause undue levels of pain” for James despite the fact that Dr. Balytsky concluded that James could not sit for more than 15 minutes at a time without experiencing pain. AR 745. But he does not explain how he reached any of these conclusions. More troubling, the plan and its reviewing physicians also appear to have simply misstated or failed to consider crucial evidence in the record. For example, Dr. Lewis noted that James’s “[r]ange of motion was not quantified to demonstrate any significant loss” and that “the provided objective findings ... do not suggest any significant abnormal pathology that would have clinically significant functional limitations.” AR 745. Dr. Balytsky, however, has noted on multiple occasions the substantial restrictions on James’s ability to move and work. For example, on January 29, 2010, Sedgwick received a “Physical Capacities Evaluation: Sedentary” form from Dr. Balytsky. AR 176, 277-78. Dr. Balytsky reported that James would not be able to stand or sit for more than 10-15 minutes, nor would she be able to lift or bend; she also said that although James could maneuver a mouse and view a computer screen for up to four hours a day, she would not be able to work for more than an hour a day. AR 277. In particular, James would need a break every 15 minutes for 10 minutes. AR 277. Dr. Balytsky stated that James’s restrictions were “permanent” and that she could not provide a return-to-work plan for James; she also noted that a sit/stand work station would not help James. AR 278. Similarly, on January 4, 2011, Dr. Balytsky completed a “Medical Source Statement of Ability To Do Work-Related Activities (Physical)” for James. AR 692-97. She determined that James could not sit or stand for more than one hour without interruption, and that she could sit no more than three hours and stand no more than two hours in an eight-hour workday. AR 693. For the remainder of the eight hours, James “has to have" } ]

[ { "docid": "22421055", "title": "", "text": "passed in response to the Supreme Court decision in Jackson.”)', United States v. Shawar, 865 F.2d 856, 864 (7th Cir.1989) (“Congress clearly was aware of the Court’s decision in Jackson, and echoed its language in § 4241(d).”); United States v. Filippi, 211 F.3d 649, 652 (1st Cir.2000) (“[§ 4241(d)] is self-evidently built upon Jackson.”). We hold that § 4241(d) comports with Jackson’s constitutional mandate. We base this conclusion on our analysis of the two factors articulated by the Jackson Court: (1) the duration of the defendant’s commitment, and (2) the closeness of the fit between the commitment and the purpose for which such commitment is designed. Unlike the statute at issue in Jackson, the duration of the commitment authorized under § 4241(d) is inherently limited. The relevant portion of the statute provides that, upon a finding of incompetency: [T]he Court shall commit the defendant to the custody of the Attorney General ... [who] shall hospitalize the defendant for treatment in a suitable facility ... for suck a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward. 18 U.S.C. § 4241(d) (emphasis added). By its own terms, § 4241(d) caps a criminal defendant’s initial commitment for incompetency to a period of no more than four months. Id. § 4241(d)(1). The statute also provides a flexible mechanism through which the defendant could gain early release — namely, through regaining competency prior to the conclusion of the four-month period, or through an appropriate medical determination that there is no “substantial probability” that the defendant could be restored to competency in the “foreseeable future.” Id. Strong’s counsel readily acknowledged the flexible nature of § 4241(d) during district court proceedings, noting at one point: “[O]nce [Strong] gets to Butner ... the staff there might say within a week that he’s competent or that he’s not restorable. That’s unlikely, but in theory, and he would be returned to us. And we would be on the trial track again.”" } ]

[ { "docid": "15334133", "title": "", "text": "of commitment under § 4241(d) [1] is to enable medical pro- fessionals to accurately determine whether a criminal defendant is restorable to mental competency.” 489 F.3d at 1062 (emphasis added). Thus, the Seventh Circuit similarly construes § 4241(d)(1) to “give[ ] the Attorney General the authority ... to conduct an in-depth evaluation of the defendant to assess the likelihood that he will regain competency____ It is during the evaluation period that the Attorney General has up to four months to assess whether the defendant will regain competency to stand trial.” United States v. Shawar, 865 F.2d at 861 (emphasis added). Second, even if a district court could order § 4241(d)(1) commitment for four months while affording the BOP only a fraction of that period for its evaluation, we expect it will rarely make sense for it to do so. The cases in which a district court anticipates protracted litigation as to the propriety of additional § 4241(d)(2)(A) hospitalization are the very ones in which mental health professionals will likely require a full four months to conduct careful and thorough § 4241(d)(1) evaluations. No one’s interests — not the parties’, not the court’s, and not the public’s — are well served by encouraging undue haste in § 4241(d)(1) evaluations. See United States v. Ferro, 321 F.3d at 762 (noting need for “careful and accurate diagnosis” to determine if defendant is restorable to mental competency); accord United States v. Strong, 489 F.3d at 1062 (citing Ferro with approval). Even if it were practical — which we doubt — for district courts routinely to impose evaluation deadlines significantly shorter than four months on the BOP, that action could not, in any event, ensure that the remaining time of § 4241(d)(1) commitment would be sufficient for the defense to secure and present evidence (including expert evidence) in opposition to further custodial hospitalization, for the government to respond to that challenge, and for the district court to hold hearings or to undertake any other review necessary to make a responsible finding as to the substantial probability of defendant attaining competency with further treatment, particularly treatment" }, { "docid": "15334128", "title": "", "text": "additional period of time [the defendant] will attain the capacity to permit the proceedings to go forward.” Id. What the statutory text does not clearly state is when the district court must make this finding. Defendant submits that the finding must be made before expiration of the defendant’s § 4241(d)(1) commitment because nothing in the statute references an interruption between § 4241(d)(1) and § 4241(d)(2) commitments. Magassouba’s argument finds its strongest support in the statute’s mandate that district courts “shall commit” incompetent defendants. Id. § 4241(d). The statutory structure appears to contemplate that such commitment shall continue until the defendant is either restored to competency, in which case the district court “shall order his immediate discharge” from hospital confinement with further detainment subject to the Bail Reform Act, id. § 4241(e) (referencing chapter 207 of Title 18, which includes the Bail Reform Act), or, in the event the court determines that the defendant has not so improved, he is referred for possible civil commitment proceedings pursuant to 18 U.S.C. §§ 4246 and 4248, see id. § 4241(d). We nevertheless find defendant’s proposed construction of § 4241(d)(1) unconvincing. It ascribes to Congress an intent more focused on ensuring that a defendant’s entire term of custodial hospitalization be uninterrupted — something not mandated by due process — than that an “additional” period of custodial hospitalization under 18 U.S.C. § 4241(d)(2)(A) be ordered only after a district court is satisfied as to the substantial probability that it will restore a defendant to competency — a due process requirement. See Jackson v. Indiana, 406 U.S. at 738, 92 S.Ct. 1845. We are mindful that circumstances can frequently arise that preclude a diligent district judge from making the required substantial probability finding within four months of a defendant’s § 4241(d)(1) hospitalization. Indeed, those circumstances can themselves implicate the defendant’s exercise of constitutional rights. Specifically, a defendant may wish to oppose additional § 4241(d)(2)(A) commitment, and affording him sufficient time to exercise this due process right may delay the district court’s substantial probability finding beyond the four-month limit on the defendant’s § 4241(d)(1) hospitalization. To present" }, { "docid": "15334126", "title": "", "text": "not to exceed four months.” Id. This four-month limitation is, in fact, the only explicit time reference in § 4241, and the lack of any provision for its extension appears deliberate in light of § 4247(b), which authorizes commitment “not to exceed thirty days” to make an initial determination of a defendant’s competency, but allows for a reasonable extension “not to exceed fifteen days.” See generally Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (noting “familiar principle of statutory construction” that “negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute”); Lindh v. Murphy, 521 U.S. 320, 326-30, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (same). Section 4241(d)(2) authorizes custodial hospitalization for an additional reasonable period of time until— (A) [the defendant’s] mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the proceedings to go forward; or (B) the pending charges against him are disposed of according to law; whichever is earlier. This language makes clear that the purpose of custodial hospitalization pursuant to subpart (A) is restorative: “until — (A) [the defendant’s] mental condition is so improved that trial may proceed.” 18 U.S.C. § 4241(d)(2)(A). Such restorative hospitalization is limited to an “additional reasonable period” necessary to that specified purpose. The fact that Congress placed no outside limit on this reasonable period (akin to the four months referenced in § 4241(d)(1)) affords district courts considerable discretion in making case-by-case determinations as to what reasonable period of additional custodial hospitalization will likely restore a defendant to competency consistent with due process. Congress’s use of the word “additional” plainly signals its intent for any restorative commitment pursuant to § 4241(d)(2)(A) to follow evaluative commitment pursuant to § 4241(d)(1). Such additional commitment is not, however, presumed. To the contrary, § 4241(d)(2)(A) commitment is authorized only “if the court finds that there is a substantial probability that within such" }, { "docid": "15334171", "title": "", "text": "unlawful custody. Because habeas corpus originates in equity, it affords courts considerable flexibility to intervene to ensure that cases of confined incompetent defendants are not allowed to languish, whether the confinement is alleged to be unlawful under § 4241(d), § 3142, some other statute, or the Constitution. See Stone v. Powell, 428 U.S. 465, 491 n. 31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (describing habeas corpus \"as a remedy for 'whatever society deems to be intolerable restraints’ ” granted to \" ‘persons whom society has grievously wronged' \" (quoting Fay v. Noia, 372 U.S. 391, 401, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963))). To be sure, an incompetent defendant cannot be expected to pursue these remedies himself, but that is precisely why he has an attorney whose responsibility it is to safeguard the defendant's legal interests. Cf. United States v. Purnett, 910 F.2d 51, 55 (2d Cir.1990) (holding that defendant whose competency is challenged cannot waive right to counsel and represent himself). . Although we reject Magassouba's claim that the identified nineteen months of confinement must be viewed as a whole in assessing the § 4241(d)(1) violation, we nevertheless conclude, for reasons discussed infra at 415-16, that this period of detention is properly considered in assessing defendant's due process challenge to further confinement. . Our identification of possible waiver or invited error to should not be construed as any criticism of the representation afforded Magassouba by his able counsel. . We do not consider on this appeal the possibility of the Attorney General satisfying the hospitalization mandate of § 4241(d) by designating an incompetent defendant to the medical wing of pretrial detention facilities. Nor do we here address whether the time a defendant, who is not otherwise detained pursuant to § 3142, spends in marshals' custody being transported to or from a prison hospital facility must be counted within the four-month term of § 4241(d)(1) custodial hospitalization. . A defendant charged with an offense is viewed as “pending trial'' from his first appearance before a judicial officer because the Constitution gives him the right to have the charged offense" }, { "docid": "23610409", "title": "", "text": "right to waive his Sixth Amendment right to counsel and proceed to represent himself. However, in order for that to happen, the Court must find a knowing, intelligent, voluntary waiver of the right to counsel. ... I have not ruled on the motion because I do not think that one can determine whether a person is competent to waive counsel until you can make a determination as to whether Mr. Boigegrain is competent to stand trial. R.O.A. vol. 11 at 2-3. The court found Mr. Boigegrain incompetent to stand trial and ordered him committed for a period not to exceed four months, pursuant to 18 U.S.C. § 4241(d). The defendant filed his appeal from that order on December 19, 1996. Counsel for the defendant moved to withdraw the appeal on the basis that this court had no jurisdiction because there was no final order issued. The en banc court found that we have jurisdiction over appeals from section 4241(d) commitment orders. See United States v. Boigegrain, 122 F.3d 1345, 1349 (10th Cir.1997) (en bane) (per curiam) (overruling United States v. Cheama, 730 F.2d 1383 (10th Cir.1984)). The court then ordered briefing on the merits, which are before this panel now. After the parties submitted briefs on the merits, at the defendant’s request we granted a limited remand so that the district court could make new findings on the defendant’s competency, and if appropriate- enter a plea agreement. The district court found the defendant competent and accepted the defendant’s guilty plea. The government then filed a motion to dismiss this appeal for mootness. We took that motion under advisement and address it first. II. The government argues that the ease is now moot because Mr. Boigegrain has pleaded guilty to the charge. We disagree. Mr. Boigegrain is appealing the district court’s order, pursuant to 18 U.S.C. § 4241(d), which found him incompetent to stand trial and ordered him committed to the custody of the Attorney General for a period not to exceed four months.' In the defendant’s first appeal of that order, we addressed the mootness question: Although the defendant’s commitment" }, { "docid": "15334144", "title": "", "text": "employed at behest of defendant); United States v. Barfield, 969 F.2d 1554, 1556-57 (4th Cir.1992) (applying harmless error review to competency proceeding); Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir.1986) (same). c. The Scope of the § 4-241(d)(l) Emor Before undertaking harmlessness review, we consider defendant’s argument that the scope of the § 4241(d)(1) error is, in fact, far greater than a mere two or three weeks of unauthorized custodial hospitalization at Butner. Magassouba asserts that he was in § 4241(d)(1) custody for at least nineteen months, from the district court’s initial oral order of October 13, 2004, until its challenged § 4241(d)(2) order on May 10, 2006. We are not persuaded. To the extent Magassouba seeks to have the period from October 13, 2004, to December 22, 2004, when he was admitted to Butner, treated as § 4241(d)(1) custody, a question of waiver is raised by his counsel’s failure to object to the district court’s January 4, 2005 order dating the defendant’s § 4241(d)(1) commitment to commence with his arrival at Butner. Similarly, the fact that, between May 12, 2004, when Magassouba was discharged from Butner, and March 22, 2006, when he moved to dismiss the indictment, his counsel never requested release from custody but, rather, urged the district court to order additional custodial hospitalization suggests possible invited error. See generally United States v. Quinones, 511 F.3d 289, 321 (2d Cir.2007) (comparing waivers resulting from defendant’s failure to object to purported error with those attributable to “invited error”). We need not here decide the difficult question of whether these waiver principles apply against an incompetent defendant, see, e.g., United States v. Purnett, 910 F.2d at 55 (“Logically, the trial court cannot simultaneously question a defendant’s mental competence to stand trial and at one and the same time be convinced that the defendant has knowingly and intelligently waived his right to counsel.”); Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (“[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court" }, { "docid": "15334131", "title": "", "text": "due process protection.” Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). More to the point, “where liberty is at stake, due process demands that the individual and the government each be afforded the opportunity not only to advance their respective positions but to correct or contradict arguments or evidence offered by the other.” United States v. Abuhamra, 389 F.3d at 322. Thus, in the absence of a clear statement by Congress placing a time limitation on district courts’ decisional authority to order § 4241(d)(2)(A) hospitalization, we decline to infer one from the evaluative confinement limit specified in § 4241(d)(1). Indeed, the due process concern we identify is compounded when the § 4241(d)(2)(A) order at issue would authorize a defendant’s involuntary medication. A defendant opposing such an order is entitled to reasonable time to develop and present evidence on a host of complex issues — medical and legal — identified in Sell v. United States, 539 U.S. at 180-81, 123 S.Ct. 2174. Cf. United States v. Rivera-Guerrero, 426 F.3d 1130, 1138—44 (9th Cir.2005) (identifying error in district court’s refusal to grant defendant continuance to secure independent medical opinions before ordering involuntary medication while defendant committed pursuant to § 4241(d)(1)). Further, he is entitled to the district court’s full and careful consideration of the Sell factors. The constitutional concern we identify could not be avoided simply by requiring the BOP to report its § 4241(d)(1) determination well in advance of the expiration of an ordered four-month term of custodial hospitalization. First, we are doubtful that such action is contemplated by the statutory scheme. Section 4241(d)(1) authorizes “the Attorney General” to hospitalize an incompetent defendant for a period “not to exceed four months, as is necessary to determine” the probability of his regaining competency. We construe this language to reference a determination by the Attorney General, acting through his agents, the mental health professionals of the BOP. As the Ninth Circuit recently observed in United States v. Strong, the “overarching purpose" }, { "docid": "15334151", "title": "", "text": "noted, defense counsel urged additional custodial hospitalization, and Ma-gassouba does not challenge the merits of the district court’s § 4241(d)(2) order on this appeal. Finally, the statutory error in this case does not rise to the level of a due process violation under Jackson v. Indiana. Although Congress has established a maximum four-month period of custodial hospitalization to evaluate the probability of an incompetent defendant regaining competency to stand trial, due process itself draws no such bright time line. See Jackson v. Indiana, 406 U.S. at 738-39, 92 S.Ct. 1845 (declining “to prescribe arbitrary time limits,” although noting that defendant had “been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial”). At whatever point it becomes constitutionally unreasonable to confine an incompetent defendant for any further time solely to evaluate his competency to stand trial, we are satisfied that the line is not crossed at four months and three weeks. See infra at 416-19 (explaining why even nineteen-month detention did not violate due process in this case). In sum, although we identify error by the Attorney General in confining Magas-souba to custodial hospitalization for two to three weeks longer than permitted by § 4241(d)(1), we conclude that the error was harmless. As such, we need not consider whether such an error could ever undermine a district court’s authority to order additional § 4241(d)(2) confinement. We can confidently conclude that it had no such effect in this case. C. Due Process Did Not Require the District Court to Dismiss the Indictment Although we reject Magassouba’s statutory challenge to the district court’s entry of a § 4241(d)(2) order on May 20, 2006, we proceed to consider his constitutional claim that, by that date, his continued confinement for the purpose of restoring competency to stand trial was no longer reasonable. In Jackson v. Indiana, the Supreme Court identified a due process concern with committing a defendant “solely on account of his incapacity to proceed to trial” for “more than the reasonable period" }, { "docid": "15334145", "title": "", "text": "the fact that, between May 12, 2004, when Magassouba was discharged from Butner, and March 22, 2006, when he moved to dismiss the indictment, his counsel never requested release from custody but, rather, urged the district court to order additional custodial hospitalization suggests possible invited error. See generally United States v. Quinones, 511 F.3d 289, 321 (2d Cir.2007) (comparing waivers resulting from defendant’s failure to object to purported error with those attributable to “invited error”). We need not here decide the difficult question of whether these waiver principles apply against an incompetent defendant, see, e.g., United States v. Purnett, 910 F.2d at 55 (“Logically, the trial court cannot simultaneously question a defendant’s mental competence to stand trial and at one and the same time be convinced that the defendant has knowingly and intelligently waived his right to counsel.”); Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (“[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.”), because we identify an alternate ground for rejecting Magassouba’s claim that he was in § 4241(d)(1) custody for nineteen months. By its terms, § 4241(d)(1) confinement is limited not only as to time and purpose but also as to place: the Attorney General must “hospitalize the defendant for treatment in a suitable facility.” 18 U.S.C. § 4241(d)(1) (emphasis added). The only facility where Magassouba appears to have been held in custodial hospitalization is Butner, where he was confined for four months and three weeks. To the extent Magassouba was otherwise generally detained at the MDC or MCC, that commitment was authorized not by § 4241(d)(1) but by the Bail Reform Act, 18 U.S.C. § 3142. Magassouba was ordered detained at the very start of this case as a presumptive risk of flight and a danger to the community pursuant to § 3142(e). While Magassouba never challenged his § 3142 detention in the district court, he contends on appeal that the statute could not authorize his detention after October 13," }, { "docid": "15334132", "title": "", "text": "States, 539 U.S. at 180-81, 123 S.Ct. 2174. Cf. United States v. Rivera-Guerrero, 426 F.3d 1130, 1138—44 (9th Cir.2005) (identifying error in district court’s refusal to grant defendant continuance to secure independent medical opinions before ordering involuntary medication while defendant committed pursuant to § 4241(d)(1)). Further, he is entitled to the district court’s full and careful consideration of the Sell factors. The constitutional concern we identify could not be avoided simply by requiring the BOP to report its § 4241(d)(1) determination well in advance of the expiration of an ordered four-month term of custodial hospitalization. First, we are doubtful that such action is contemplated by the statutory scheme. Section 4241(d)(1) authorizes “the Attorney General” to hospitalize an incompetent defendant for a period “not to exceed four months, as is necessary to determine” the probability of his regaining competency. We construe this language to reference a determination by the Attorney General, acting through his agents, the mental health professionals of the BOP. As the Ninth Circuit recently observed in United States v. Strong, the “overarching purpose of commitment under § 4241(d) [1] is to enable medical pro- fessionals to accurately determine whether a criminal defendant is restorable to mental competency.” 489 F.3d at 1062 (emphasis added). Thus, the Seventh Circuit similarly construes § 4241(d)(1) to “give[ ] the Attorney General the authority ... to conduct an in-depth evaluation of the defendant to assess the likelihood that he will regain competency____ It is during the evaluation period that the Attorney General has up to four months to assess whether the defendant will regain competency to stand trial.” United States v. Shawar, 865 F.2d at 861 (emphasis added). Second, even if a district court could order § 4241(d)(1) commitment for four months while affording the BOP only a fraction of that period for its evaluation, we expect it will rarely make sense for it to do so. The cases in which a district court anticipates protracted litigation as to the propriety of additional § 4241(d)(2)(A) hospitalization are the very ones in which mental health professionals will likely require a full four months to" }, { "docid": "15334087", "title": "", "text": "it challenges defendant’s arguments on the merits. For the reasons stated herein, we conclude that the collateral order doctrine supports our exercise of jurisdiction. We further conclude that the district court did not exceed its authority in ordering Ma-gassouba’s § 4241(d)(2)(A) commitment for additional custodial hospitalization and involuntary psychiatric treatment. We agree with defendant that § 4241(d) does not permit an incompetent defendant to be held in uninterrupted custodial hospitalization unless a district court finds, before the expiration of a defendant’s initial term of § 4241(d)(1) confinement (which cannot exceed four months), that circumstances warrant additional hospitalization pursuant to § 4241(d)(2)(A). Thus, when a defendant’s term of § 4241(d)(1) confinement expires and no § 4241(d)(2) order has yet been entered, the Attorney General lacks statutory authority to hold a defendant in further custodial hospitalization. But we cannot agree that the statute also limits a district court’s authority to enter a § 4241(d)(2)(A) order to the term of § 4241(d)(1) confinement. Such a construction could itself raise constitutional concerns to the extent it failed to afford a defendant a reasonable time to secure and present evidence in opposition to additional § 4241(d)(2)(A) hospitalization, particularly hospitalization involving involuntary medication. See Sell v. United States, 539 U.S. at 180-81, 123 S.Ct. 2174. In this case, it appears that the Attorney General exceeded his § 4241(d) authority by holding Magassouba in custodial hospitalization for a few weeks longer than the four months authorized by the district court’s § 4241(d)(1) order. We conclude that this error was harmless because Ma-gassouba was not subjected to psychiatric treatment during this unauthorized hospitalization, and his general confinement was otherwise authorized by the Bail Reform Act, 18 U.S.C. § 3142. Thus, the error could not deprive the district court of its authority subsequently to enter the challenged § 4241(d)(2)(A) order. We further conclude that Magassouba’s nineteen-month detention from the time he was found incompetent until the date of the challenged order was not constitutionally unreasonable so as to violate due process. Magassouba’s refusal to accept treatment that his own lawyers acknowledged would likely render him competent required the district" }, { "docid": "23434933", "title": "", "text": "3182, 3432, 3437 [hereinafter S.Rep. No. 225] (responsibility for care of insane persons is a function of the states; once federal charges against a hospitalized defendant are dropped, federal government does not have sufficient contacts with the person to justify continued hospitalization). Finally, commitment proceedings pursuant to statute must comport with due process. Baker, 807 F.2d at 1321 (quoting Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980)); see also Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972) (defendant committed solely on account of lack of capacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the future). A. Language of the Statute 1. Discretionary or Mandatory? The issue for us to decide is how § 4241(d) should be interpreted. There are two possible readings of this statute. The first would mandate, in any case where the court finds a defendant incompetent, that it commit him to the custody of the Attorney General. The second reading, the one adopted by Judge Evans, would require the court to commit the defendant to the custody of the Attorney General for up to four months only if there is a probability that there will be a change in the defendant’s mental condition. Although the district judge obviously attempted to comply with what he felt to be the spirit of the statute, the statutory scheme established by Congress clearly mandates that a defendant found to be incompetent be placed in a mental hospital for observation. Section 4241(d) of Title 18 reads: (d) Determination and disposition. If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the" }, { "docid": "15334162", "title": "", "text": "an order of commitment pursuant to 18 U.S.C. § 4241(d)(2)(A) that authorizes involuntary medication. No different conclusion is warranted because defendant’s challenge focuses on the timeliness of the order rather than the grounds for its entry. 2. Magassouba’s timeliness challenge fails because § 4241(d)(1) imposes an outside limit of four months only on the time the Attorney General can hold a criminal defendant in custodial hospitalization for purposes of determining the probability of his attaining competency in the foreseeable future. In the absence of a clear statement of congressional intent, we decline to infer from this statutory language a four-month limit on a district court’s authority to order a defendant’s additional hospitalization for treatment under § 4241(d)(2)(A), particularly as such a construction could raise constitutional concerns about affording defendants a reasonable opportunity to oppose § 4241(d)(2)(A) orders, particularly those providing for involuntary treatment. 3. Although Magassouba’s custodial hospitalization pursuant to § 4241(d)(1) exceeded the four-month statutory limit by two to three weeks, this error was harmless in light of the fact that defendant was otherwise detained — without objection— pursuant to the Bail Reform Act, 18 U.S.C. § 3142. As such, the error could not deprive the district court of authority to order additional § 4241(d)(2) hospitalization and treatment. 4. Magassouba’s constitutional challenge also fails because the totality of the circumstances — including Magassouba’s refusal of treatment, which required the district court to engage in the multi-factor analysis outlined in Sell v. United States, 539 U.S. at 180-81, 123 S.Ct. 2174 — demonstrate that his total nineteen months’ confinement from the time he was found incompetent to stand trial until the district court entered the challenged treatment order was not so unreasonable as to violate due process. Order Affirmed. . As Dr. Collins detailed in his report, a person with this disorder “suffers from false fixed beliefs of a ‘nonbizarre’ quality.” Dr. Collins determined that Magassouba suffered specifically from persecutory delusions, i.e., he believed that the judge, the attorneys, and unknown court personnel involved in his case were conspiring against him and that his mother-in-law was trying to kill him." }, { "docid": "15334125", "title": "", "text": "of § 4241(d) goes further, mandating both a particular place and condition of confinement: “[t]he Attorney General shall hospitalize the defendant for treatment in a suitable facility.” 18 U.S.C. § 4241(d) (emphasis added). At the same time that § 4241(d) mandates custodial hospitalization and treatment for defendants found mentally incompetent to stand trial, two subsections of the statute limit the time and purpose of such commitments. Section 4241(d)(1) authorizes custodial hospitalization for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future [the defendant] will attain the capacity to permit the proceedings to go forward. As this language makes plain, the initial purpose of custodial hospitalization is evaluative: “to determine whether there is a substantial probability that in the foreseeable future [the defendant] will attain the capacity to permit the proceedings to go forward.” Id. Consistent with Jackson v. Indiana, an incompetent defendant may be hospitalized for such an evaluative purpose only for “a reasonable period of time, not to exceed four months.” Id. This four-month limitation is, in fact, the only explicit time reference in § 4241, and the lack of any provision for its extension appears deliberate in light of § 4247(b), which authorizes commitment “not to exceed thirty days” to make an initial determination of a defendant’s competency, but allows for a reasonable extension “not to exceed fifteen days.” See generally Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (noting “familiar principle of statutory construction” that “negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute”); Lindh v. Murphy, 521 U.S. 320, 326-30, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (same). Section 4241(d)(2) authorizes custodial hospitalization for an additional reasonable period of time until— (A) [the defendant’s] mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit" }, { "docid": "15334135", "title": "", "text": "involving forced medication. Thus, in the absence of clear congressional direction to the contrary and consistent with the principle of constitutional avoidance, we decline to construe § 4241(d)(1) to impose a four-month deadline on the district court’s decisional authority to order § 4241(d)(2) commitment. Instead, we construe § 4241(d)(1) to impose a four-month limit only on the Attorney General’s authority to hold an incompetent defendant in custodial hospitalization for the purpose of determining the probability of his regaining competency. If, at the end of an ordered term of § 4241(d)(1) hospitalization “not to exceed four months,” the district court has not ordered additional hospitalization pursuant to § 4241(d)(2), it does not lose its authority to do so. Rather, upon expiration of a § 4241(d)(1) order and in the absence of a § 4241(d)(2) order, it is the Attorney General who lacks authority to hold the defendant in further custodial hospitalization under § 4241(d). In such circumstances, the Attorney General must restore a defendant to the status quo ante his § 4241(d)(1) confinement. United States v. Baker, 807 F.2d 1315 (6th Cir.1986), cited by defendant, supports no different statutory construction. Although Baker ruled that § 4241(d) “requires that a determination as to the individual’s mental condition be made within four months,” id. at 1320, the statement must be read in context. There was no question in Baker of a district court’s authority to enter a § 4241(d)(2) order after the four-month period referenced in § 4241(d)(1). Rather, the issue in Baker was the Attorney General’s authority to keep a defendant in custodial hospitalization for more than four months — specifically, from September 1985 to March 1986— in the absence of anything but a § 4241(d)(1) order. In addressing this scenario, Baker ruled: This confinement was clearly in excess of four months, and there is nothing in the record to indicate that his period of confinement was properly extended. Therefore, although the court’s initial commitment of appellant on September 30th was valid, we hold that there was no authority to confine appellant beyond the four months authorized by section 4241(d). Id. Similarly," }, { "docid": "15334129", "title": "", "text": "§ 4241(d). We nevertheless find defendant’s proposed construction of § 4241(d)(1) unconvincing. It ascribes to Congress an intent more focused on ensuring that a defendant’s entire term of custodial hospitalization be uninterrupted — something not mandated by due process — than that an “additional” period of custodial hospitalization under 18 U.S.C. § 4241(d)(2)(A) be ordered only after a district court is satisfied as to the substantial probability that it will restore a defendant to competency — a due process requirement. See Jackson v. Indiana, 406 U.S. at 738, 92 S.Ct. 1845. We are mindful that circumstances can frequently arise that preclude a diligent district judge from making the required substantial probability finding within four months of a defendant’s § 4241(d)(1) hospitalization. Indeed, those circumstances can themselves implicate the defendant’s exercise of constitutional rights. Specifically, a defendant may wish to oppose additional § 4241(d)(2)(A) commitment, and affording him sufficient time to exercise this due process right may delay the district court’s substantial probability finding beyond the four-month limit on the defendant’s § 4241(d)(1) hospitalization. To present effective opposition, defense counsel will need time to review the BOP record, to consult with the defendant, and to retain one or more independent mental health professionals. Those experts may, in turn, need time to examine the defendant, to review BOP records for themselves, and to prepare their own evaluations of defendant’s ability to attain competency. Thereafter, government counsel will undoubtedly seek a reason able time to respond, whereupon the court may require an evidentiary hearing and briefing to permit it to make a careful finding as to whether there is a substantial probability of defendant attaining competency with additional custodial hospitalization. This sequence of events can easily take longer than four months, even when the parties and the court give the matter diligent attention. To construe the four-month limit on the term of custodial hospitalization under § 4241(d)(1) as a four-month limit on the court’s authority to order additional confinement under § 4241(d)(2)(A) thus raises due process concerns. It is well-established that “commitment for any purpose constitutes a significant deprivation of liberty that requires" }, { "docid": "15334124", "title": "", "text": "court is required to commit the defendant to the custody of the Attorney General for a reasonable period of time to evaluate whether treatment would allow the trial to proceed”); United States v. Filippi, 211 F.3d at 651 (stating that statute establishes non-discretionary general rule of commitment without a “case-by-case choice by the district court as to whether to incarcerate once the incompetency finding has been made”); United States v. Donofrio, 896 F.2d at 1302 (holding that commitment under § 4241(d) is “mandatory” once court determines defendant to be in competent); United States v. Shawar, 865 F.2d at 860 (holding that “plain meaning” of phrase “shall commit” is “that once a defendant is found incompetent to stand trial, a district court has no discretion in whether or not to commit him”). For a defendant such as Magassouba, already detained as a risk of flight and danger to the community pursuant to 18 U.S.C. § 3142, the commitment mandate of § 4241(d) might be viewed as duplica-tive in depriving him of basic liberty. But the text of § 4241(d) goes further, mandating both a particular place and condition of confinement: “[t]he Attorney General shall hospitalize the defendant for treatment in a suitable facility.” 18 U.S.C. § 4241(d) (emphasis added). At the same time that § 4241(d) mandates custodial hospitalization and treatment for defendants found mentally incompetent to stand trial, two subsections of the statute limit the time and purpose of such commitments. Section 4241(d)(1) authorizes custodial hospitalization for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future [the defendant] will attain the capacity to permit the proceedings to go forward. As this language makes plain, the initial purpose of custodial hospitalization is evaluative: “to determine whether there is a substantial probability that in the foreseeable future [the defendant] will attain the capacity to permit the proceedings to go forward.” Id. Consistent with Jackson v. Indiana, an incompetent defendant may be hospitalized for such an evaluative purpose only for “a reasonable period of time," }, { "docid": "15334086", "title": "", "text": "the challenged order, the district court lacked authority to commit him for psychiatric treatment. He further submits that the length of his unauthorized confinement violated due process so as to require the dismissal of his indictment and his release from custody. Magassouba’s arguments largely depend on the construction of § 4241(d), a statute that authorizes a district court to commit a mentally incompetent defendant to custodial hospitalization (1) for a reasonable period “not to exceed four months” to determine whether he can attain competency to stand trial, 18 U.S.C. § 4241(d)(1); and, (2) if the court finds a “substantial probability” that the defendant can attain such competency in the “foreseeable future,” for an additional “reasonable period” of appropriate treatment, id. § 4241(d)(2)(A). Ma-gassouba submits that a district court is only authorized to order additional hospitalization if it makes the requisite substantial probability finding under § 4241(d)(2)(A) within the term of a defendant’s § 4241(d)(1) confinement, which was not done in this case. The government submits that we lack jurisdiction to hear this interlocutory appeal. Alternatively, it challenges defendant’s arguments on the merits. For the reasons stated herein, we conclude that the collateral order doctrine supports our exercise of jurisdiction. We further conclude that the district court did not exceed its authority in ordering Ma-gassouba’s § 4241(d)(2)(A) commitment for additional custodial hospitalization and involuntary psychiatric treatment. We agree with defendant that § 4241(d) does not permit an incompetent defendant to be held in uninterrupted custodial hospitalization unless a district court finds, before the expiration of a defendant’s initial term of § 4241(d)(1) confinement (which cannot exceed four months), that circumstances warrant additional hospitalization pursuant to § 4241(d)(2)(A). Thus, when a defendant’s term of § 4241(d)(1) confinement expires and no § 4241(d)(2) order has yet been entered, the Attorney General lacks statutory authority to hold a defendant in further custodial hospitalization. But we cannot agree that the statute also limits a district court’s authority to enter a § 4241(d)(2)(A) order to the term of § 4241(d)(1) confinement. Such a construction could itself raise constitutional concerns to the extent it failed to afford" }, { "docid": "15334136", "title": "", "text": "Baker, 807 F.2d 1315 (6th Cir.1986), cited by defendant, supports no different statutory construction. Although Baker ruled that § 4241(d) “requires that a determination as to the individual’s mental condition be made within four months,” id. at 1320, the statement must be read in context. There was no question in Baker of a district court’s authority to enter a § 4241(d)(2) order after the four-month period referenced in § 4241(d)(1). Rather, the issue in Baker was the Attorney General’s authority to keep a defendant in custodial hospitalization for more than four months — specifically, from September 1985 to March 1986— in the absence of anything but a § 4241(d)(1) order. In addressing this scenario, Baker ruled: This confinement was clearly in excess of four months, and there is nothing in the record to indicate that his period of confinement was properly extended. Therefore, although the court’s initial commitment of appellant on September 30th was valid, we hold that there was no authority to confine appellant beyond the four months authorized by section 4241(d). Id. Similarly, in United States v. Donofrio, the Eleventh Circuit ruled that § 4241(d)(1) “limits confinement to four months, whether more time [for evaluation of probable recovery] would be reasonable or not,” 896 F.2d at 1303. Donofrio explained that “[a]ny additional period of confinement depends upon the court’s finding [that] there is a probability that within the additional time [the defendant] will attain capacity to permit trial.” Id. But, like Baker, Donofrio had no occasion to consider, and thus did not address, the district court’s authority to make such a finding after a term of § 4241(d)(1) confinement expired if a defendant were not held in custodial hospitalization in the interim. See also United States v. Charters, 829 F.2d at 484-86 (reversing forcible medication order and remanding case for further proceedings as defendant’s “federal custodians do not at present have legal authority to detain” him because (a) § 4241(d)(1) order had expired, (b) court’s finding that he was unlikely to recover precluded detention under § 4241(d)(2), and (c) court had failed to follow procedures necessary for civil" }, { "docid": "15334091", "title": "", "text": "understand the nature and consequences of the proceedings against him or to assist properly in his defense.” To make this determination, the district court must conduct a hearing at which the defendant, represented by counsel, is afforded an opportunity to testify and to call and confront witnesses. See 18 U.S.C. §§ 4241(a), (c) & 4247(d). Prior to this hearing, the district court “may order” a psychiatric or psychological examination of the defendant. Id. § 4241(b). To effect such examination, the court “may” order the defendant committed “to the custody of the Attorney General for placement in a suitable facility.” Id. § 4247(b). This commitment may not “exceed thirty days,” although the statute permits the director of the designated commitment facility to apply for a “reasonable extension ... not to exceed fifteen days.” Id. 2. The Evaluation and Treatment of Incompetent Defendants If the district court makes a preliminary finding of incompetence, the second step of the statutory scheme — at issue in this case — mandates the defendant’s custodial hospitalization for evaluation and possible treatment. The district court “shall commit the defendant to the custody of the Attorney General,” who “shall hospitalize the defendant for treatment in a suitable facility.” Id. § 4241(d). Initially, such hospitalization seeks “to determine whether there is a substantial probability that in the foreseeable future [the defendant] will attain the capacity to permit the proceedings to go forward.” Id. § 4241(d)(1). This evaluative hospitalization is limited to “a reasonable period of time, not to exceed four months.” Id. Thereafter, “if the court finds that there is a substantial probability” that the defendant “will attain the capacity to permit the proceedings to go forward,” the law provides for further hospitalization “for an additional reasonable period of time.” Id. § 4241(d)(2)(A). 3. The Final Competency Determination At the conclusion of the specified hospitalization commitment, if the court determines that the defendant has not attained the competency necessary to proceed to trial, § 4241(d) provides for the defendant to be referred for civil commitment pursuant to 18 U.S.C. §§ 4246 and 4248. If, however, the director of the" } ]

[ { "docid": "11580700", "title": "", "text": "to appear. We will set forth the facts in more detail as we discuss each of his contentions. I. Failure to Appear Fisher’s indictment charged him with failing to appear “for pretrial motions and trial” from on or about May 31, 1995 until June 28, 1995. To prove Fisher guilty of violating § 3146, the government was required to prove beyond a reasonable doubt that Fisher “(1) was released pursuant to that statute, (2) was required to appear in court, (3) knew that he was required to appear, (4) failed to appear as required, and (5) was willful in his failure to appear.” Weaver v. United States, 37 F.3d 1411, 1413 (9th Cir.1994). Fisher contends that there was insufficient evidence of element (4), because there was never any fixed date on which he was required to appear and did not. We conclude that he is correct. a. The May 31 trial date. When Fisher was released after his initial arrest, one of the conditions of his release was that he “appear at all proceedings as required.” There is no question that Fisher knew that he was required to appear for his trial scheduled on May 31,1995. Other conditions of his release required Fisher to maintain contact with pretrial services, to submit to drug testing, and not to change his residence or employment without prior approval of a pretrial services officer. Fisher violated all three of the latter conditions and his pretrial services officer was unable to locate him. A warrant for his arrest was accordingly issued on May 25,1995. In the meantime, however, on May 16, Fisher’s counsel had moved for a continuance because he needed more time to investigate the case and prepare for trial. The court granted the motion on May 22 and set a new trial date of June 27, 1995. It is not clear whether Fisher received notice of the new trial date, but if he did not, the failure is due to his becoming a fugitive. As a consequence, he is charged with knowledge of that date. See Weaver, 37 F.3d at 1413. Lack of" } ]

[ { "docid": "21022727", "title": "", "text": "the case at bar which make the reasoning in that case inapplicable here. The most significant distinction is that, in Montilla Ambrosiani, “the government disclaimed charging any impropriety in making the deposits, and charged only nondisclosure.” Id. (emphasis added). In other words, the government’s position in Montilla Ambrosiani was that a single nondisclosure in a document filed with the bankruptcy court could support separate charges of both concealment and making a false statement. “To put it baldly, as the government did ..., saying one has $5 when one has $10 is both a false statement and a concealment, and thus two separate offenses.” Id. In the present case, by contrast, the government has never claimed that the acts of concealment charged in Counts I and II occurred when defendant made the false statements in his monthly bankruptcy report. Rather, the government alleged that defendant (1) knowingly and fraudulently concealed property of the bankruptcy estate at the time he deposited the $25,800 in his wife’s Putnam account and (2) knowingly and fraudulently concealed property of the bankruptcy estate at the time he deposited the $10,23141, representing the proceeds from the cattle sale, into the account in the name of the Horseshoe Ranch Trust. Those being separate acts from the false statement charged in Count III, Montilla Ambrosiani does not apply. Accordingly, we hold that the counts charged in the indictment were not multiplicitous in violation of defendant’s rights under the double jeopardy clause. 18 U.S.C. § 3U2(c)(1)(B)(viii) Defendant also challenges on appeal the condition of his pretrial release, imposed by the district court, which required him to surrender all his firearms and refrain from possessing any firearms pending the outcome of the trial. 18 U.S.C. § 3142(e)(l)(B)(viii) (a judicial officer has the discretion to impose conditions of release pending trial, including the requirement that the defendant refrain from possessing firearms, in consideration of the defendant’s flight risk or potential danger to other individuals or the community). Defendant argues that the imposition of this statutory condition violated his constitutional right to bear arms. In response, the government disputes defendant’s Second Amendment argument" }, { "docid": "16479808", "title": "", "text": "the motion is based on new or previously unavailable evidence, the defendant has to establish that “the evidence was: (i) unknown or un available at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial.” Tibolt, 72 F.3d at 971. Although the new statements by the two principals of the drug transaction that Mon-tilla is innocent appear facially to satisfy the third and fourth elements of the test, our focus is on the first element of the test. The district court denied the motion on the ground that the evidence was both known and available. Similarly, the government, apparently conceding the third and fourth elements, argues that the testimony was neither unknown, nor unavailable. It also asserts that Montilla did not exercise due diligence. In this lies the problem. Both the government’s arguments and the district court’s ruling assume that Zorrilla and Calderón were “available” to testify at Montilla’s trial. But Montilla, who, it facially appears, had diligently attempted to secure their testimony, did not have the power to compel them to testify at his trial in light of their Fifth Amendment privileges once they changed their minds about testifying. Montilla’s trial commenced on June 27, 1995. On that same day, Calderón and Zorrilla entered pleas of guilty and the court accepted their pleas. Their sentencing was deferred until September, 1995. Calderon’s and Zorrilla’s counsel each advised his client not to testify for Montilla because the testimony might incriminate them with regard to other transactions and because the men still had to face sentencing proceedings. Exercising their privilege against self-incrimination, Calderón and Zorrilla informed the court that they would not testify, and they were excused. We have recognized that an unsentenced defendant who has pled guilty retains a legitimate protectable Fifth Amendment interest as to matters that could affect his sentence. United States v. De La Cruz, 996 F.2d 1307, 1312 (1st Cir.1993); see United States v. Zirpolo, 704 F.2d 23, 25 & n. 2 (1st Cir.1983); see also Estelle v. Smith, 451 U.S. 454, 461-63, 101 S.Ct. 1866, 1872-73," }, { "docid": "16479803", "title": "", "text": "and through their counsel, that they would not testify for Montilla. Montilla was convicted on July 1, 1995. Cal-derón and Zorrilla were not sentenced until September 26,1995. On July 17, 1996, Montilla filed a motion for a new trial under Fed.R.Crim.P. 33. The motion attached nearly identical affidavits from Zorrilla and Calderón. Zorrilla’s affidavit said in relevant part: I never knew Mr. Fernando Montilla as qa [sic] drug dealer nor that he was or has been involved in drugs [sic] dealing but as a good har [sic] worker as a mechanic. I state that Mr. Fernando Montilla was not involve [sic] in the drugs [sic] transaction occurred on the date of my arrest and for which I pled guilty. Calderon’s affidavit stated in part: At no time, I have [sic] been aware that Mr. Fernando Montilla has been involved in any illegal activity like the one for which he was convicted, possession with intent to distribute cocaine. In other words, Mr. Fernando Montilla was not involve [sic] in the offense for which I pled guilty. At all time [sic] I knew Mr. Fernando Montilla as a hard mechanic worker and anything [sic] else. Citing United States v. Tibolt, 72 F.3d 965 (1st Cir.), cert. denied, — U.S. -, 116 S.Ct. 2554, 135 L.Ed.2d 1073 (1996), the district court denied the new trial motion on the grounds that the witnesses were known and available at the time of trial. Thus, in the court’s view, Montilla did not meet the requirements of Fed.R.Crim.P. 33. II. Sufficiency of the Evidence In our sufficiency of the evidence review, we determine whether, drawing all reason able inferences in the government’s favor, a rational jury could find guilt beyond a reasonable doubt. Andrade, 94 F.3d at 12. Montilla argues that the jury was faced with two equally likely scenarios, one of which was that he was innocent. He asserts that under United States v. Andujar, 49 F.3d 16 (1st Cir.1995), this is insufficient to meet the government’s burden of proof of guilt beyond a reasonable doubt. Montilla’s statement of the law is correct. Id. at 22" }, { "docid": "23155321", "title": "", "text": "outstanding conviction. The immigration judge ruled from the bench that petitioner’s deportability was established by evidence that was “clear, convincing, and unequivocal.” After balancing the factors in Montilla’s favor— long-term residence in the United States, majority of family in the country including immediate family, stable employment history, and active church membership — against the single factor against him — conviction for a narcotics offense, described as an “extremely serious act” — the court found that the negative factors outweighed the positive ones and denied relief under § 212(c) of the Act. Montilla appealed the immigration judge’s decision to the Board of Appeals contending that he had been denied due process because he did not knowingly waive his right to counsel. On March 22, 1990 the Board dismissed the appeal, with one member dissenting. It observed that Montilla had been provided with a list of immigration lawyers practicing in the area where the hearing took place, had been afforded a two-week continuance in order to obtain an attorney, and did not request an opportunity to secure counsel when the hearing reconvened. The Board held petitioner had effectively waived his right to counsel. It further noted that were it improper to proceed without further inquiry by the judge regarding the waiver of counsel, “respondent would be required to demonstrate prejudice before we would grant a new hearing, and he has not done so.” After an analysis of the factors set forth in Matter of Marin, 16 I & N Dec. 581 (BIA 1978), and the evidence presented at the deportation hearing, the Board concluded that even if an “attorney could have assisted the petitioner in demonstrating additional factors” militating in favor of relief under § 212(c) of the Act, a heightened demonstration of unusual equities had to be made in a case such as petitioner’s, where an alien has been convicted of a serious drug trafficking offense. The Board also stated that Montilla had not demonstrated rehabilitation or contrition since he had continued to deny any involvement in narcotics trafficking. The dissenting Board member would have remanded for a new hearing based" }, { "docid": "15387161", "title": "", "text": "based upon probable cause even though he had no knowledge of any scheduled court appearance defendant failed to attend. Because the warrantless arrest was lawful, the magistrate then concluded that the search incident thereto was lawful. Consequently, the first packet of heroin seized was not suppressible. This evidence, in turn, provided probable cause for the issuance of a search warrant for defendant’s luggage. Hence, the second search was lawful. After hearing extensive oral argument from counsel, the district court disagreed with the magistrate’s recommendation, sustaining defendant’s motion to suppress all the evidence seized. II The government’s position on this appeal is that Agent Markonni’s warrant-less arrest was authorized by 21 U.S.C. § 878(3) (1976) which provides: Any officer or employee of the Bureau of Narcotics and Dangerous Drug designated by the Attorney General may— (3) make arrests without warrant (A) for any offense against the United States committed in his presence, or (B) for any felony, cognizable under the laws of the United States, if he has probable cause to believe that the person to be arrested has committed or is committing a felony . Two theories are offered. First, the government maintains that Agent Markonni had probable cause to arrest defendant for “bail jumping” as proscribed by 18 U.S.C. § 3150 (1976). Alternatively, the government claims that there was probable cause to arrest defendant for “bail jumping” under 18 U.S.C. § 3146 (1976), or 18 U.S.C. § 401(3) (1976), or a combination thereof, because she violated the travel restriction condition of her bond. A. SECTION 3150 — WILLFUL FAILURE TO APPEAR The only criminal penalties provided for in the Bail Reform Act of 1966 are found in 18 U.S.C. § 3150 (1976). § 3150. Penalties for failure to appear Whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge" }, { "docid": "21022726", "title": "", "text": "The First Circuit held in Montilla Ambrosiani that the indictment was multi-plieitous because Count 1, which alleged unlawful concealment of bankruptcy estate funds received and deposited by the defendant during a period from March 1977; through December 1977, was essentially the same as Counts 2-10, which alleged the making of false entries in the debtor’s monthly bankruptcy reports (Counts 2-9, referring to May through December 1977 receipts) and in a statement of affairs (Count 10, referring to March and April 1977 receipts). In that ease, however, not only did the overlapping concealment and false statement counts involve the very same funds, they were also based upon the exact same acts of nondisclosure. Thus, the First Circuit opined that, to call a single act of nondisclosure both a concealment and a false statement, “is but another name for the same rose.” Id. at 68. We do not take issue with the First Circuit’s reasoning in Montilla Ambrosiani, as it applies to the specific facts of that case. However, there are critical differences between Montilla Ambrosiani and the case at bar which make the reasoning in that case inapplicable here. The most significant distinction is that, in Montilla Ambrosiani, “the government disclaimed charging any impropriety in making the deposits, and charged only nondisclosure.” Id. (emphasis added). In other words, the government’s position in Montilla Ambrosiani was that a single nondisclosure in a document filed with the bankruptcy court could support separate charges of both concealment and making a false statement. “To put it baldly, as the government did ..., saying one has $5 when one has $10 is both a false statement and a concealment, and thus two separate offenses.” Id. In the present case, by contrast, the government has never claimed that the acts of concealment charged in Counts I and II occurred when defendant made the false statements in his monthly bankruptcy report. Rather, the government alleged that defendant (1) knowingly and fraudulently concealed property of the bankruptcy estate at the time he deposited the $25,800 in his wife’s Putnam account and (2) knowingly and fraudulently concealed property of the" }, { "docid": "16479807", "title": "", "text": "second is that, when the informant told the men it was time to deliver the drugs to his partner, all three men, including Montilla, left the small room to go out toward the car. The third is that Montilla, who did not have the drugs, stopped just outside the shop, and from that vantage watched. He was well-situated to act as a lookout, and an arresting agent thought that was exactly what Montilla was doing. The evidence is thin, but not so thin as to invalidate the jury’s reasonable assessment that Montilla is guilty. New Trial Motion The district court’s denial of the motion for a new trial is reviewable only for a manifest abuse of discretion. Andrade, 94 F.3d at 14. A district court’s power to order a new trial is greater than its power to grant a motion for acquittal. Ruiz, 105 F.3d at 1500. Rule 33 of the Federal Rules of Criminal Procedure authorizes a district court to grant a new trial “if required in the interest of justice.” Where, as here, the motion is based on new or previously unavailable evidence, the defendant has to establish that “the evidence was: (i) unknown or un available at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial.” Tibolt, 72 F.3d at 971. Although the new statements by the two principals of the drug transaction that Mon-tilla is innocent appear facially to satisfy the third and fourth elements of the test, our focus is on the first element of the test. The district court denied the motion on the ground that the evidence was both known and available. Similarly, the government, apparently conceding the third and fourth elements, argues that the testimony was neither unknown, nor unavailable. It also asserts that Montilla did not exercise due diligence. In this lies the problem. Both the government’s arguments and the district court’s ruling assume that Zorrilla and Calderón were “available” to testify at Montilla’s trial. But Montilla, who, it facially appears, had diligently attempted to secure their testimony, did not" }, { "docid": "23155341", "title": "", "text": "(at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose; 8 U.S.C. § 1252(b)(2) (1988). The INS regulation in question goes beyond the statutory requirement. It directs the Immigration Judge to advise the respondent of his right to representation, at no expense to the Government, by counsel of his own choice ... in the proceedings and require him to state then and there whether he desires representation; advise the respondent of the availability of free legal services programs .... 8 C.F.R. § 242.16 (1990). It seems to me that the Immigration Judge scrupulously complied with the regulation in this case. At their first meeting, he advised Montilla of his right to an attorney, provided him with a list of Legal Aid lawyers, advised him of his right to present evidence in the form of witnesses, and discussed the hearing procedure, the object of the hearing and the right to appeal. The Judge specifically asked Montilla whether he wanted time to prepare or to find an attorney. When Montilla replied that he “really [didn’t] know what to do,” the Judge told him he could not advise him and then adjourned the matter for two weeks so that Montilla could “talk about this with an attorney.” The Judge performed the duty imposed upon him by the INS regulation — he required Montilla to state whether representation was desired after fully advising him of his right to be represented. The regulation does not command that the answer to the inquiry be responsive. According to my brethren, the Immigration Judge failed to comply with the regulation because “Montilla never faced and decided [the] question.” At p. 169. I disagree with that statement in two respects. First, I think that Montilla “faced” the question because he apparently understood that he had the right to an attorney at his own expense; I think that he “decided” the question because he appeared on the adjourned date without counsel, prepared to proceed. Second, the regulation does not mandate a particular form of response or any response at all, so" }, { "docid": "23433870", "title": "", "text": "to a physician who could help her obtain medical treatment if she sold cocaine to the physician. On September 2, 1987, “Dr. Victor Guevara” contacted Montilla by means of a beeper Montilla carried. “Dr. Guevara” was, in fact, Special Agent Victor Guerrero of the FBI, posing as a physician. Guerrero had several meetings with Montilla, during which Montilla agreed to sell him ten kilos of cocaine — the transaction to be arranged by Hernandez. Hernandez attended some of the meetings. At others, Mon-tilla and Guerrero met alone. Guerrero flirted with Montilla, and she apparently became attracted to the handsome “doctor”. Guerrero indicated that he would help her obtain medical treatment, although he made no specific promises, and also told her that she should get a job that offered medical insurance. On October 6, 1987, Montilla delivered the ten kilos of cocaine to Guerrero and was arrested. She was charged with conspiracy to possess cocaine, 21 U.S.C. § 846, and possession of ten kilos of cocaine with intent to distribute. 21 U.S.C. § 841(a)(1). The possession charge carried a ten-year mandatory minimum sentence. 21 U.S.C. § 841(b)(l)(A)(ii)(II) (Supp. IV 1987). The conspiracy count did not carry a mandatory minimum. See 21 U.S.C. § 846. The government offered Montilla a plea bargain; she could plead guilty to the conspiracy count in exchange for dismissal of the possession charge. Montilla filed a pretrial motion to dismiss the indictment for outrageous government conduct, and requested an evidentiary hearing. Montilla’s attorney attempted to paint a lurid picture for the district court of a helpless young woman forced to enter the drug trade by evil government agents preying upon her need for an expensive operation. The government countered with allegations that Montilla lived with a professional cocaine dealer, that she carried a beeper so she could help him with deliveries, and that she was certainly no stranger to the drug trade. On February 16, 1988, the district court denied the motion for an evidentiary hearing. The court decided to delay consideration of the motion to dismiss until trial. The court did not want to spend a" }, { "docid": "23433872", "title": "", "text": "day hearing pretrial testimony that would be duplicated at the trial if the motion was denied. Accordingly, the court refused to rule on the motion until the evidence at trial was heard. This ruling conflicted with Montilla’s tactical needs, because she wanted to test her outrageous conduct claim prior to trial. The government refused to consent to a conditional plea, and the plea bargain was off if the case went to trial. Montilla’s brief sums up her predicament, as she saw it, very well: “A pretrial hearing would provide her [the] only opportunity for a judicial ruling on the government’s misconduct because she was not going to risk a ten-year minimum sentence by asserting a misconduct defense at trial....” On March 7, 1988, Montilla renewed her motion for a pretrial hearing on her motion to dismiss. The judge informed her attorney that he was not able to arrange his schedule solely to strengthen defendants’ plea bargaining positions, and that he would rule on the motion at trial. He told counsel that it was time for Montilla to “fish or cut bait.” Montilla cut bait, pleading guilty to the conspiracy count. She was sentenced to five years in prison. Montilla timely appeals. Fed.R.App.P. 4(b). We have jurisdiction. 28 U.S.C. § 1291 (1982). We review the questions of law raised in this appeal de novo. In re McLinn, 739 F.2d 1395, 1398 (9th Cir.1984) (en banc). We review the timing of an evidentiary hearing for abuse of discretion. United States v. Layton, 720 F.2d 548, 553 (9th Cir.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984). II The due process defense based upon the alleged outrageous conduct of government agents is often pleaded, but is very rarely successful. See United States v. Pemberton, 853 F.2d 730, 735 (9th Cir.1988) (per curiam) (noting that defense has been successfully used to dismiss an indictment only once in the Ninth Circuit). The defense is based upon the Supreme Court’s 1973 dictum that a case may arise presenting “a situation in which the conduct of law enforcement agents is so outrageous that" }, { "docid": "16479802", "title": "", "text": "up that day. The owner also said that Zorrilla had worked for him at the shop for over a year, but had not worked there during the previous four months. The owner explained that just before Montilla went outside to the front of the shop where he was arrested, Montilla had said that he was stepping outside to have a soft drink and to smoke. Montilla’s second witness, who was visiting the shop during the incident, testified that he had seen Montilla working on a car until he stepped outside to have a cigarette since the owner did not allow smoking inside the shop. The jury convicted Montilla, and he was sentenced to five years in prison and eight years of supervised release. Montilla originally planned to call both Zorrilla and Calderón as witnesses. The two entered guilty pleas on June 27, 1995. On June 29,1995, Montilla filed a motion to have the Marshal’s Service produce his codefend-ants to testify. The court granted the motion, but the two eodefendants informed the court, on advice of and through their counsel, that they would not testify for Montilla. Montilla was convicted on July 1, 1995. Cal-derón and Zorrilla were not sentenced until September 26,1995. On July 17, 1996, Montilla filed a motion for a new trial under Fed.R.Crim.P. 33. The motion attached nearly identical affidavits from Zorrilla and Calderón. Zorrilla’s affidavit said in relevant part: I never knew Mr. Fernando Montilla as qa [sic] drug dealer nor that he was or has been involved in drugs [sic] dealing but as a good har [sic] worker as a mechanic. I state that Mr. Fernando Montilla was not involve [sic] in the drugs [sic] transaction occurred on the date of my arrest and for which I pled guilty. Calderon’s affidavit stated in part: At no time, I have [sic] been aware that Mr. Fernando Montilla has been involved in any illegal activity like the one for which he was convicted, possession with intent to distribute cocaine. In other words, Mr. Fernando Montilla was not involve [sic] in the offense for which I pled guilty." }, { "docid": "23155342", "title": "", "text": "When Montilla replied that he “really [didn’t] know what to do,” the Judge told him he could not advise him and then adjourned the matter for two weeks so that Montilla could “talk about this with an attorney.” The Judge performed the duty imposed upon him by the INS regulation — he required Montilla to state whether representation was desired after fully advising him of his right to be represented. The regulation does not command that the answer to the inquiry be responsive. According to my brethren, the Immigration Judge failed to comply with the regulation because “Montilla never faced and decided [the] question.” At p. 169. I disagree with that statement in two respects. First, I think that Montilla “faced” the question because he apparently understood that he had the right to an attorney at his own expense; I think that he “decided” the question because he appeared on the adjourned date without counsel, prepared to proceed. Second, the regulation does not mandate a particular form of response or any response at all, so it cannot be said that the Judge failed to comply with the regulation because the answer to his question was not responsive. Montilla was entitled to stand mute if he wished to do so. The regulation focuses on the Immigration Judge, not on the respondent, at the hearing. That Mon-tilla indicated an uncertainty about how he desired to proceed does not gainsay the fact that the Judge fully complied with the regulation by advising Montilla of the right to counsel and asking whether he wanted one. Rios-Berrios v. INS, 776 F.2d 859 (9th Cir.1985), said by Montilla to “bear a striking resemblance to this case,” is not to the contrary. The record in that case did not disclose that petitioner was advised at the first deportation hearing “of his right to counsel of his own choice or of the availability of free legal counsel.” Id. at 860-61. The record merely contained a statement of the Immigration Judge adjourning the hearing for one working day “in light of petitioner’s statement that he needed time to find" }, { "docid": "22299165", "title": "", "text": "“[d]id not think so” and that “[t]ime [would] tell”, however, the court held that “the Government has not sustained its burden of proving that no condition or combination of conditions will reasonably assure the appearance of Shakur as required during the course of this trial.” The court ordered Shakur to be released on bail subject to certain conditions. Those conditions include, among others, that Shakur execute a $500,000 personal recognizance bond to be secured by real property pledged by Shakur’s attorney, family members, friends, and supporters, and that Shakur maintain daily contact with the office of the United States Attorney through a variety of procedures. On February 23, 1987, the government filed a notice of appeal pursuant to 18 U.S.C. §§ 3145(c) and 3731 (1982 & Supp. Ill 1985). We ordered that the appeal be expedited. For the reasons set forth below, we reverse the order of the district court. II. A. The Statutory Scheme and the Standard of Review. The Act provides that a court should order a defendant detained pending trial if “no conditions or combination of conditions will reasonably assure the appearance of the person as required.” 18 U.S.C. § 3142(e). We have interpreted § 3142(e) to require a district court to engage in a two step inquiry before ordering a defendant released or detained pending trial. United States v. Berrios-Berrios, 791 F.2d 246, 250 (2 Cir.), cert. dismissed, 107 S.Ct. 562 (1986). First, the court must make a finding as to whether the defendant presents a risk of flight if not detained. Id.; see United States v. Martir, 782 F.2d 1141, 1146 (2 Cir.1986) (factors to be considered in making a finding whether a defendant presents a risk of flight). Second, if the court finds that a defendant is likely to flee, then the court must proceed to the second step of the inquiry, namely, whether there are conditions or a combination of conditions which reasonably will assure the presence of the defendant at trial if he is released. Berrios-Berrios, supra, 791 F.2d at 250. The burden of proof is on the government to prove the" }, { "docid": "16479819", "title": "", "text": "grant a new trial to that defendant if required in the interest of justice.... A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. . The statements are material and appear to give rise to a \"reasonable” probability of acquittal upon retrial. United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993). In saying this, we are taking account of the ambiguity and thinness of the inculpatory evidence and are taking the exculpatory statements at face value. Whether the latter would retain their force after close examination is a different question; as we note below, a hearing might cast a different light on these statements. . According to Montilla's trial attorney's affidavit submitted in support of the motion for a new trial, he tried on two separate occasions to interview Zorrilla and Calderón, but they refused to give him any information. (The dates of these attempts are unclear). Despite not knowing the contents of their testimony, the trial attorney moved to have Zorrilla and Calderón subpoenaed to testify. His client Montilla insisted that the testimony would exculpate him rather than hurt him. . In different contexts, such as reported improper communications with jurors, hearings have been thought necessary before there is a ruling on a new trial motion. Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). Although different institutional interests are admittedly at stake, we have required a hearing be held on motions to withdraw guilty pleas, where affidavits raise substantial issues of whether the defendant is guilty. United States v. Crooker, 729 F.2d 889, 890 (1st Cir.1984); United States v. Fournier, 594 F.2d 276, 279 (1st Cir.1979). . Some courts have concluded that affidavits from others recanting their earlier testimony may be deemed inherently not credible. See, e.g., United States v. Leibowitz, 919 F.2d 482, 483 (7th Cir.1990) (only partial hearing conducted on new trial motion)." }, { "docid": "18621116", "title": "", "text": "right derived from the sixth amendment right to counsel in criminal cases and the fifth- amendment right to due process in civil cases, and enshrined in § 292 of the Act, 8 U.S.C. § 1362. When a regulation is mandated by the Constitution or federal law, the INS maintains, a court’s duty to enforce the regulation is “most evident.” United States v. Caceres, 440 U.S. 741, 749, 99 S.Ct. 1465, 1470, 59 L.Ed.2d 733 (1979). In the instant case, the INS contends, the privilege of communication with consular officials, and the certification of one’s case, are merely creatures of agency regulations. Therefore, the argument goes, Waldron should be required to establish that prejudice resulted from the INS’s failure to comply with its own regulations. The INS concedes that Montilla sets forth a broad rule requiring remand whenever any regulation “for the benefit” of the alien is violated. However, the INS argues that this Court should limit that broad language because the Montilla panel “erroneously adopted an absolute ‘no prejudice’ standard.” Instead, the INS urges this Court to adopt the standard set forth by the Ninth Circuit in Calderon-Medina. Under Calderon-Medina, a “[violation of a regulation renders a deportation unlawful only if the violation prejudiced interests of the alien which were protected by the regulation.” 591 F.2d at 531. We reject the INS’s argument. In the first place, there is no indication in Montilla that its holding was limited to constitutional or federal statutory rights. Indeed, we note that although Calderon-Medina also involved the privilege to contact consular’ authorities under § 242.2, the majority in Mon-tilla did not distinguish Galderon-Medina on that ground, as it readily could have if the distinction was of some importance. Rather, Montilla merely requires that the Court ascertain whether the subject regulations were for the alien’s benefit, and if so, to determine if the INS failed to adhere to them. 926 F.2d at 169. Moreover, we see no reason to limit the broad language in Montilla. Montilla was premised upon fundamental notions of fair play underlying the concept of due process. Id. at 167-69. In addition," }, { "docid": "23636296", "title": "", "text": "SNEED, Circuit Judge: Hernandez and Cardona appeal their convictions for conspiracy to possess and possession with intent to distribute cocaine. They argue (1) that the evidence is insufficient to prove the existence of a conspiracy; and (2) that there was insufficient evidence to support a finding of constructive possession. Hernandez also contends that the district court abused its discretion in refusing to admit allegedly exculpatory evidence. We affirm. I. FACTS AND PROCEEDINGS BELOW FBI Agent Guerrero, acting undercover began negotiating the sale of cocaine from codefendant Montilla. See United States v. Montilla, 870 F.2d 549, 550-51 (9th Cir.1989). Guerrero met with Montilla several times beginning in early September 1987. Montilla told Guerrero that her boyfriend “Hector,” would help her and that she and Hector were in charge of the transaction. On September 17, Guerrero met Hernandez who was introduced as Hector. The two men discussed the details of the exchange of cash and cocaine. Guerrero had several other meetings with Montilla and Hernandez. Some of these conversations were recorded. The transcripts of these conversations were introduced into evidence. On September 21, the three met again to discuss the specifics of the exchange. Montilla called Guerrero again on September 22 and told him that neither Hernandez nor his suppliers wanted to complete the deal. Montilla told Guerrero that she would find another supplier. On September 23, Montilla and Hernandez introduced Guerrero to Gonzalez. Gonzalez and Guerrero discussed a possible sale. Gonzalez asked Guerrero for his beeper number. After this meeting, Montilla became concerned that Gonzalez was trying to cut her out of the transaction. Guerrero assured Montilla that he would only deal with her and not directly with Gonzalez. The next day, she called Guerrero again to assure him that she was looking for another supplier. On September 29, Montilla indicated that she had found a new supplier. Guerrero and Montilla had several more conversations in early October. Finally, October 6 was set as the date of the transaction. On October 6, Montilla and Guerrero spoke at 3:15 p.m.; Montilla said she was waiting for the cocaine. Shortly after 4:00, an" }, { "docid": "22299164", "title": "", "text": "and explanation could take place? MR. LUMUMBA [Shakur’s counsel]: May we confer? THE COURT: You may. (pause) MR. LUMUMBA: We have no advice to give him. THE COURT: All right. A. When you say ‘this court,’ you, as personalizing it— Q. Well, I don’t mean me, I mean the Federal Court for the Southern District of New York dealing with the charges with which you are confronted. A. No. Q. That had not occurred to you? A. No.” Shakur also stated that if he was released on bond it would be “under my strategy” to participate in the trial. Shakur indicated that his supporters who were willing to pledge their property for his bond “would be very upset” if he violated the conditions of his bail. In an opinion and order entered February 19, 1987, the district court granted Shakur’s application for release from pretrial detention. The court recognized that “releasing this defendant on bail is not risk-free”, that “Shakur’s promises may be lies”, and that Shakur “may be conning this Court”. Concluding that it “[d]id not think so” and that “[t]ime [would] tell”, however, the court held that “the Government has not sustained its burden of proving that no condition or combination of conditions will reasonably assure the appearance of Shakur as required during the course of this trial.” The court ordered Shakur to be released on bail subject to certain conditions. Those conditions include, among others, that Shakur execute a $500,000 personal recognizance bond to be secured by real property pledged by Shakur’s attorney, family members, friends, and supporters, and that Shakur maintain daily contact with the office of the United States Attorney through a variety of procedures. On February 23, 1987, the government filed a notice of appeal pursuant to 18 U.S.C. §§ 3145(c) and 3731 (1982 & Supp. Ill 1985). We ordered that the appeal be expedited. For the reasons set forth below, we reverse the order of the district court. II. A. The Statutory Scheme and the Standard of Review. The Act provides that a court should order a defendant detained pending trial if “no" }, { "docid": "15616405", "title": "", "text": "BOOCHEVER, Circuit Judge: This consolidated appeal is brought by relatives of Benito Frias-Ramirez (defendant), who was under indictment. The relatives executed and posted a personal surety bond to obtain defendant’s release on bail pending trial. Upon defendant’s disappearance, the court ordered the bond forfeited, denied the sureties’ motion to set aside or remit the forfeiture, and entered judgment on the forfeiture. We affirm. I FACTS Defendant was arrested and charged with conspiring to import cocaine and to possess, with intent to distribute, both cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, 960, and 963. A United States magistrate set bail at $350,-000 cash or corporate surety bond. Defendant requested a bail reduction. The magistrate denied the request, citing defendant’s alleged involvement with a principal in the conspiracy and his concern that defendant might flee to Mexico as reasons to deny the request. The magistrate, however, was impressed by the fact that defendant’s parents were willing to tender their residence as security for their son’s release. He stated that he would consider reducing bail if defendant found other relatives or friends who would serve as personal sureties and who could provide additional property as security for a bail bond. Other members of defendant’s family agreed to pledge their property in order to arrange his release. At a hearing on June 21, 1979, the magistrate agreed to accept a $250,000 personal surety bond to be signed by Mr. and Mrs. Conrado Frias, Mr. and Mrs. Enrique Villegas, Mr. and Mrs. Antonio Varagosa, and Mr. and Mrs. Elíseo Arreguin (sureties), all of whom were Spanish-speaking with a limited understanding of English. The sureties conveyed to the government trust deeds for three parcels of improved real property, representing a combined equity of approximately $185,000, as security for the bond. The magistrate explained to defendant the conditions of his release and the severe consequences that would ensue to the sureties if he failed to appear when required. The magistrate, using an interpreter, also addressed the attending sureties, informing them that they would lose their property if defendant failed to reappear and" }, { "docid": "14206423", "title": "", "text": "(hereinafter referred to as McCandless), president of the petitioner, on May 8, 1941, wrote a letter to the Reorganization Division, Bureau of Internal Revenue, Washington, D. C., forwarding copies of petitioner’s profit and loss statements and balance sheets for 1940. The letter states, in part, as follows: • You will notice from the Balance Sheet, that the working capital position is very serious. We have quite a large number of past due accounts payable and of course, this adds to our worries and makes it really impossible to maintain the schedule of payments to the Government upon which we agreed. I simply cannot see any way to make these payments during 1941 with our present financial set-up, and frankly, I am at a loss for some alternative suggestion. * ' * * * * * * There is only one tentative suggestion that I have to make now. I believe that by pledging everything under the sun, I can raise .$50,000. in cash, although I am not certain about this. I would be perfectly willing to undertake this, if the Treasury Department would consider a $50,000. cash payment in compromise settlement for the Government’s claim against Denman. The Balance Sheet shows $52,000. in bonds outstanding, and the remainder of the issue of $122,500, owned by the company. We have been forced to pledge these bonds for bank loans, in order to pay the most pressing current creditors, consequently, in case of liquidation, I am afraid the Government’s claim would not be paid in full. In fact, based on my experience in the tire business, the Government would probably realize a fairly small fraction of the indebtedness. For this reason, I think the Government may wish to accept $50,000. compromise settlement now instead of taking a chance on the future. McCandless went to Washington several times during 1941 to discuss with representatives of the Internal Revenue Bureau the financial condition of the petitioner and its inability to make the payments due. He told them that, if payment in full were insisted upon, the Government would have to take over the entire" }, { "docid": "23433871", "title": "", "text": "charge carried a ten-year mandatory minimum sentence. 21 U.S.C. § 841(b)(l)(A)(ii)(II) (Supp. IV 1987). The conspiracy count did not carry a mandatory minimum. See 21 U.S.C. § 846. The government offered Montilla a plea bargain; she could plead guilty to the conspiracy count in exchange for dismissal of the possession charge. Montilla filed a pretrial motion to dismiss the indictment for outrageous government conduct, and requested an evidentiary hearing. Montilla’s attorney attempted to paint a lurid picture for the district court of a helpless young woman forced to enter the drug trade by evil government agents preying upon her need for an expensive operation. The government countered with allegations that Montilla lived with a professional cocaine dealer, that she carried a beeper so she could help him with deliveries, and that she was certainly no stranger to the drug trade. On February 16, 1988, the district court denied the motion for an evidentiary hearing. The court decided to delay consideration of the motion to dismiss until trial. The court did not want to spend a day hearing pretrial testimony that would be duplicated at the trial if the motion was denied. Accordingly, the court refused to rule on the motion until the evidence at trial was heard. This ruling conflicted with Montilla’s tactical needs, because she wanted to test her outrageous conduct claim prior to trial. The government refused to consent to a conditional plea, and the plea bargain was off if the case went to trial. Montilla’s brief sums up her predicament, as she saw it, very well: “A pretrial hearing would provide her [the] only opportunity for a judicial ruling on the government’s misconduct because she was not going to risk a ten-year minimum sentence by asserting a misconduct defense at trial....” On March 7, 1988, Montilla renewed her motion for a pretrial hearing on her motion to dismiss. The judge informed her attorney that he was not able to arrange his schedule solely to strengthen defendants’ plea bargaining positions, and that he would rule on the motion at trial. He told counsel that it was time for" } ]

[ { "docid": "7033856", "title": "", "text": "the district court’s gatekeeper function applies to all expert testimony, not just testimony based in science. Id. at 147, 119 S.Ct. 1167. Kroger does not contest that Dr. Reilly possesses the qualifications to testify as an expert under Rule 702. The district court acknowledged that Dr. Reilly qualifies as an expert in chiropractic treatment. Kroger also does not contest that Dr. Reilly’s testimony would assist the jury. Thus, the issue of contention between the parties centers on whether Dr. Reilly’s methodology is reliable. Kroger argues Dr. Reilly’s testimony is inadmissible because he failed to perform a differential diagnosis to exclude other contributing factors to Kudabeck’s degenerative disc disease, instead he relied on Ku-dabeck’s word in determining causation. Kroger also argues that Dr. Reilly’s testimony is unreliable because he failed to cite published studies on causation to support his conclusion. First, Kroger argues Dr. Reilly’s testimony as to causation is unreliable because he failed to perform a differential diagnosis to exclude other potential sources of degenerative disc disease. “In performing a differential diagnosis, a physician begins by ‘ruling in’ all scientifically plausible causes of the plaintiffs injury. The physician then ‘rules out’ the least plausible causes of injury until the most likely cause remains.” Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir.2001). We have previously held that “a medical opinion about causation, based upon a proper differential diagnosis, is sufficiently reliable to satisfy Daubert.” Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir.2000). A district court may exercise its gatekeeping function to exclude only those diagnoses that are scientifically invalid. Glastetter, 252 F.3d at 989. At trial, Dr. Reilly testified that something other than a fall could cause degenerative disc disease. However, Dr. Reilly indicated that he ruled out alternative sources, such as infection, since at the time of Kudabeck’s first examination she did not have a fever, nor did she have redness in her back. Dr. Reilly also ruled out arthritis as a potential source because Ku-dabeck’s x-rays, at the first visit, did not show any signs of arthritis in her back. After taking" } ]

[ { "docid": "12507899", "title": "", "text": "respiratory disease, but Dr. Hof did not rely on Poisondex in formulating his opinion. Further, the Eighth Circuit determined that the Poisondex reference, which merely stated that the chemical substance was a respiratory irritant, was insufficient to establish a causal link to the plaintiffs medical condition. However, “[i]f a properly qualified medical expert performs a reliable differential diagnosis through which, to a reasonable degree of medical certainty, all other possible causes of the victims’ condition can be eliminated, leaving only the toxic substance as the cause, a causation opinion based on that differential diagnosis should be admitted.” Id. at 1209. Because Dr. Hof did not scientifically rule out all other possible causes of the plaintiffs condition, the Eighth Circuit upheld the district court’s decision to exclude Dr. Hofs opinion as to the cause of her medical condition. In Mattis v. Carlon Elec. Products, 295 F.3d 856 (8th Cir.2002), the Eighth Circuit Court of Appeals determined that the district court properly admitted causation testimony by a medical expert in a toxic tort case. In Mattis, the plaintiff alleged that the inhalation of cement while working as an electrician caused RADS, and introduced expert testimony by his treating physician and an industrial hygienist regarding causation. The Eighth Circuit determined that the plaintiffs treating physician’s testimony was legally sufficient because the physician performed a valid differential diagnosis to determine that plaintiffs exposure to the cement caused RADS. While treating Mattis, Dr. Hansen ruled out other possible causes of Mattis’s illness, such as smoking, asthma, or ammonia, and concluded that he developed RADS as a result of his exposure to Carlon cement fumes. She also relied on published studies linking RADS to organic solvents like those in Carlon cement. This testimony was properly admitted at trial and by relying on it, a reasonable jury could find that exposure to Carlon cement was the cause of Mat-tis’s injury. Id. at 861. In a recent toxic tort case, Bland v. Verizon Wireless, (VAW) L.L.C., 538 F.3d 893 (8th Cir.2008), the Eighth Circuit Court of Appeals considered whether the district court properly excluded expert testimony on causation." }, { "docid": "20785247", "title": "", "text": "identifying the cause of a medical problem”); Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir.2000) (“[A] medical opinion about causation, based upon a proper differential diagnosis, is sufficiently reliable to satisfy Daubert.”); Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 253 (1st Cir.1998) (stating that “ ‘differential diagnosis’ is a standard medical technique”); Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C.Cir.1996) (describing the appropriate use of differential diagnosis to prove specific causation); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043-44 (2d Cir.1995); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 862 (3d Cir.1990). When an expert rules out a potential cause in the course of a differential diagnosis, the “expert must provide reasons for rejecting alternative hypotheses using scientific methods and procedures and the elimination of those hypotheses must be founded on more than subjective beliefs or unsupported speculation.” Clausen, 339 F.3d at 1058 (internal quotation marks and citation omitted); Daubert II, 43 F.3d at 1318 (requiring explanations based on “scientifically valid principles”). The district court abused its discretion in excluding Dr. Jackson’s opinion, which stated that a patient without cancer or exposure to radiation in the mouth area would not develop ONJ lasting for years without IV bisphosphonate treatments. It excluded the testimony because Dr. Jackson “never explained the scientific basis for this conclusion.” But Dr. Jackson repeatedly referred to his own extensive clinical experience as the basis for his differential diagnosis, as well as his examination of Messick’s records, treatment, and history. Medicine partakes of art as well as science, and there is nothing wrong with a doctor relying on extensive clinical experience when making a differential diagnosis. Dr. Jackson also relied on the AAOMS definition of BRONJ in reaching his diagnosis and causation conclusions, which itself persuasively uses the three elements to distinguish BRONJ from other ONJ or delayed healing conditions. These sources form an appropriate scientific basis for his opinions, and the district court abused its discretion in concluding otherwise. See Primiano, 598 F.3d at 567 (admitting expert’s testimony with “sufficient basis in education and experience”). Although experts" }, { "docid": "22407533", "title": "", "text": "differential diagnosis, district court abused its discretion in refusing to admit it), with Moore v. Ashland Chem., Inc., 151 F.3d 269, 277-79 (5th Cir.1998) (en banc) (concluding that district court did not abuse its discretion in rejecting expert opinion on causation without discussing why differential diagnosis was insufficient to support admission of opinion into evidence), cert. denied, — U.S.-, 119 S.Ct. 1454, 143 L.Ed.2d 541 (1999). Thus, we hold that a reliable differential diagnosis provides a valid foundation for an expert opinion. C. GGAB next maintains that, assuming a differential diagnosis may provide a trustworthy foundation for an opinion on causation, Dr. Isenhower’s differential diagnosis did not. According to GGAB, Dr. Isenhower’s differential diagnosis was unreliable because he could not “rule in” 'talc as a possible cause of sinus disease. See Raynor v. Merrell Pharms., Inc., 104 F.3d 1371, 1374-76 (D.C.Cir.1997) (holding that expert opinion that exposure to Bendectin caused birth defects based in part on differential diagnosis was not admissible in light of “overwhelming body of contradictory epidemiological evidence” (internal quotation marks omitted)). Further, GGAB contends that Dr. Isenhower’s differential diagnosis was not reliable because he failed to “rule out” all other possible causes. GGAB asserts that Dr. Isenhower could not “rule in” talc because'he had no means of accurately- assessing what level of exposure was adequate to produce the sinus irritation Westberry experienced. In order to carry the burden of proving a plaintiffs injury was caused by exposure to a specified substance, the “plaintiff must demonstrate ‘the levels of exposure that are hazardous to human beings generally, as well as the plaintiffs actual level of exposure.’ ” Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir.1999) (quoting Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir.1996)); see Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 199 (5th Cir.1996) (concluding that “[s]eientifie knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs’ burden in a toxic tort case”); cf. Black v. Food Lion, Inc., 171 F.3d 308, 314" }, { "docid": "23120653", "title": "", "text": "a particular case how to go about determining whether particular expert testimony is reliable.” See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. III. As an initial matter, S & N claims that Dr. Mitchell was not qualified to offer opinions as an expert in this case. Like the district court, we assume, without deciding, that Dr. Mitchell was qualified to testify regarding the medical cause of Cooper’s injuries. However, we must still review for abuse of discretion the district court’s determination that Dr. Mitchell’s testimony was unreliable and, therefore, inadmissible. Cooper contends that Dr. Mitchell conducted a differential diagnosis to determine the cause of his injuries. Cooper argues that since this court has approved differential diagnosis as a reliable methodology, see Westberry, 178 F.3d at 263, the district court abused its discretion in refusing to admit Dr. Mitchell’s testimony. In Westberry, this court explained that differential diagnosis is “a standard scientific technique of identifying the cause of a medical problem ... by determining the possible causes for the patient’s symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely.” 178 F.3d at 262. A reliable differential diagnosis typically, though not invariably, “is performed after physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests.” Id. (internal citations omitted). Cooper is correct that Westbeii'y held that a reliable differential diagnosis provides a valid foundation for an expert opinion under Rule 702. See id. at 263. However, the district court in turn correctly held that Dr. Mitchell’s differential diagnosis was not reliable. “A reliable expert opinion must be based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.” Oglesby v. General Motors Corp., 190 F.3d 244, 250 (4th Cir.1999). In this case, Dr. Mitchell asserted what amounted to a wholly conclusory finding based upon his subjective beliefs rather than any valid scientific method. Dr. Mitchell has never implanted a" }, { "docid": "1387035", "title": "", "text": "subject to the same standards of scientific reliability that govern the expert opinions of physicians hired solely for purposes of litigation.” Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1207 (8th Cir.2000) (citing Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167). The district court excluded Dr. Sprince’s causation testimony because Dr. Sprince (1) failed scientifically to eliminate other possible causes as part of her differential diagnosis; (2) did not know “what amount of exposure to [the] difluroethane-containing Freon causes, or involves an appreciable risk of causing, asthma”; (3) “had no good grounds for determining whether Bland was exposed to a sufficient dose of difluoroethane-containing Freon to have caused her asthma, because [Dr. Sprince] ... could not determine or estimate the amount of difluoroethane or Freon ... Bland was actually or probably exposed [to] when she smelled the water in her water bottle”; (4) could not extrapolate from the existing data because the gap between the data identified and Dr. Sprince’s proffered opinion was “ ‘simply too great an analytical gap’ ... to support admissibility (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)) (citation omitted)”; (5) did not offer as evidence any personal experience with “treating other patients following a similar exposure to difluoroethane, Freon, or Freon with difluo-roethane”; and (6) reliance on temporal proximity, without more, is insufficient to establish causation. Bland asserts the district court abused its discretion in holding Dr. Sprince’s causation opinion was scientifically unsupported because the opinion was the product of reliable methods and principles. Further, Bland asserts the district court “abused [its] discretion by imposing a burden of proof tantamount to scientific certainty rather than the preponderance of evidence standard required by law.” 1. Differential Diagnosis Bland asserts Dr. Sprince conducted a differential diagnosis which supports Dr. Sprince’s causation opinion. We have held, “a medical opinion about causation, based upon a proper differential diagnosis is sufficiently reliable to satisfy Daubert.” Turner, 229 F.3d at 1208. A “differential diagnosis [is] a technique that identifies the cause of a medical condition by eliminating the likely causes" }, { "docid": "1387036", "title": "", "text": "admissibility (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)) (citation omitted)”; (5) did not offer as evidence any personal experience with “treating other patients following a similar exposure to difluoroethane, Freon, or Freon with difluo-roethane”; and (6) reliance on temporal proximity, without more, is insufficient to establish causation. Bland asserts the district court abused its discretion in holding Dr. Sprince’s causation opinion was scientifically unsupported because the opinion was the product of reliable methods and principles. Further, Bland asserts the district court “abused [its] discretion by imposing a burden of proof tantamount to scientific certainty rather than the preponderance of evidence standard required by law.” 1. Differential Diagnosis Bland asserts Dr. Sprince conducted a differential diagnosis which supports Dr. Sprince’s causation opinion. We have held, “a medical opinion about causation, based upon a proper differential diagnosis is sufficiently reliable to satisfy Daubert.” Turner, 229 F.3d at 1208. A “differential diagnosis [is] a technique that identifies the cause of a medical condition by eliminating the likely causes until the most probable cause is isolated.” Id. (citing Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.1999)). Dr. Sprince’s attempt to use a differential diagnosis to establish the inhalation or ingestion of freon caused Bland’s exercise-induced asthma fails because Dr. Sprince’s own testimony acknowledged the cause of exercise-induced asthma in the majority of cases is unknown. Where the cause of the condition is unknown in the majority of cases, Dr. Sprince cannot properly conclude, based upon a differential diagnosis, Bland’s exposure to freon was “the most probable cause” of Bland’s exercise-induced asthma. As a practical matter, Dr. Sprince’s causation opinion could not possibly be based upon a reasonable degree of medical certainty. The district court further concluded Dr. Sprince failed to eliminate scientifically other possible causes as part of her differential diagnosis. Even if Dr. Sprince were able to link exercise-induced asthma to freon inhalation or ingestion, Dr. Sprince must also rule out other possible causes. Id. at 1209 (recognizing “an expert must ‘rule in’ the suspected cause as well as ‘rule" }, { "docid": "12507896", "title": "", "text": "Cir.2001) (internal citations omitted). However, a plaintiff is not required to produce a mathematically precise table equating levels of exposure with levels of harm — the plaintiff must only produce evidence from which a reasonable person could conclude that the defendant’s emissions probably caused the plaintiffs harms. Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1107 (8th Cir.1996). “Daubert ensures that all expert testimony is scientifically reliable before being submitted to the jury.” Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1207 (8th Cir.2000). Neither Rule 702 nor Dau-bert requires the expert testimony to resolve the ultimate issue of fact to a scientific absolute. Bonner, 259 F.3d at 929. “The only question relevant to the admissibility of the scientific evidence is whether it is sufficiently reliable and relevant to assist the jury’s determination of a disputed issue.” Id. “A treating physician’s expert opinion on causation is subject to the same standards of scientific reliability that govern the expert opinions of physicians hired solely for purposes of litigation.” Turner, 229 F.3d at 1207. The Eighth Circuit Court of Appeals has stated that “a medical opinion about causation, based upon a proper differential diagnosis, is sufficiently reliable to satisfy Daubert.” Id. at 1208. In Turner, the plaintiff alleged that she was exposed to a toxic chemical substance and sought to introduce testimony from her treating physician as to the medical cause of her symptoms. The plaintiffs medical expert acknowledged that the differential diagnosis he performed was for the purpose of identifying the plaintiffs condition, not its cause. The expert “made no attempt to consider all the possible causes, or to exclude each potential cause until only one remained, or to consider which of two or more non-excludable causes was the more likely to have caused the condition.” Turner, 229 F.3d at 1208. The Eighth Circuit specifically noted the difference between a medical physician performing a differential diagnosis and a causal diagnosis: As her treating physician, Dr. Hof wanted to identify Delores Turners’ condition so he could treat it. Dr. Hofs diagnosis was, we believe, one which the medical community more properly" }, { "docid": "23177266", "title": "", "text": "account of a particular patients’ reaction to a drug or other stimulus, accompanied by a description of the relevant surrounding circumstances.” Id. Here, Drs. Kulig, Iffy, and Jose performed a differential diagnosis, reviewing Ms. Hollander’s medical history and medical records, excluding other causes of her stroke, and then attributing the stroke to Parlodel. They relied in part on case reports, both those filed with the FDA and those published in the professional literature. Dr. Kulig expressed the view that the onset of Ms. Hollander’s initial symptom (i.e., developing a headache several days after giving birth) and the timing of her stroke (several days after her discharge from the hospital) fit a general pattern seen in patients suffering adverse reactions to Parlodel and was also consistent with the pharmokinetics of the drug. With regard to differential diagnoses, courts have reached contrasting conclusions as to reliability under Daubert. Compare Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262-66 (4th Cir.1999) (holding that “[a] reliable differential diagnosis provides a valid basis for an expert opinion on causation” and concluding that the district court did not abuse its discretion in admitting a physician’s opinion testimony based on differential diagnosis) with Glastetter, 252 F.3d at 989 (holding that a district court did not abuse of discretion in excluding a differential diagnosis that was “scientifically invalid”); see also Federal Judicial Center, Reference Manual on Scientific Evidence 34 (2d. ed.2000) (noting that “[jjudges disagree on whether a physician relying on the methodology of clinical medicine can provide adequate proof of causation in a toxic tort action”). Courts have also reached contrasting conclusions as to the reliability of case reports. Compare Glaser v. Thompson Med. Co., 32 F.3d 969, 975 (6th Cir.1994) (holding that the district court abused its discretion in excluding physician’s opinion testimony based in part on case reports) with Casey v. Ohio Med. Prods., 877 F.Supp. 1380, 1385 (N.D.Cal.1995) (stating that “case reports are not reliable scientific evidence of causation, because they simply described reported phenomena without comparison to the rate at which the phenomena occur in the general population or in a defined control" }, { "docid": "3174230", "title": "", "text": "the plaintiffs condition to a study, and the study is based on an unreliable methodology, then the comparison itself is futile. Schultz, the case on which the Milwards rely, is consistent with this view. In that case, the Seventh Circuit reversed a district court’s decision to exclude specific causation expert testimony about an individual’s exposure level to benzene. 721 F.3d at 428. The Seventh Circuit found that the testimony was reliable because the expert “focused specifically on the amount of benzene to which [the plaintiff] had been exposed and related this -amount to the scientific literature.” Id. at 432. Importantly, the expert in Schultz did not simply point to favorable studies showing an increased risk of leukemia at low levels of exposure. Instead, the expert in that case explained why he believed that a conflicting study was unreliable and why, based on his knowledge of the literature, he chose to rely on the studies that he did. Id. at 432-33. Here, the relevant studies-were not only in tension with one another, but expressly cast each other into doubt. See, e.g., EPA Office of Research and Development, Carcinogenic Effects of Benzene: An Update, at 14 (April 1998). Given that, the district court reasonably ruled that there needed to be some indication of why Dr. Butler utilized the studies that she did. Indeed, her complete unwillingness to engage with the conflicting studies (irrespective of whether she Was able to or not) made it impossible for the district court to ensure that her opinion was actually based on scientifically reliable evidence and, correspondingly, that it comported with Rule 702. Not only does this render this case readily distinguishable from Schultz, but it also justifies the district court’s decision. Differential Diagnosis The district court also rejected Dr. Butler’s “differential diagnosis.” ' Although the judge did not question Dr. Butler’s decision' to “rule out” obesity and smoking as causes of Brian Milward’s APL, the court was concerned about the utility of the approach given the high percentage of APL cases that are idiopathic (according to the record, roughly 70-80% of all APL diagnoses). The judge" }, { "docid": "23177265", "title": "", "text": "isolated vein of an animal) as opposed to a systemic administration; and some were poorly documented”); Siharath, 131 F.Supp.2d at 1367-69 (discussing three animal studies in detail and concluding that they did not constitute a reliable basis for experts’ opinions that Parlodel caused the plaintiffs stroke). In light of these characteristics of the animal studies, the district court’s conclusion that they were unreliable does not “exceed[ ] the bounds of permissible choice in the circumstances.” McEwen, 926 F.2d at 1553-54. We therefore discern no abuse of discretion in the court’s analysis. e. Case studies and differential diagnosis The next methodologies employed by the Hollanders’ experts present a closer question. “Differential diagnosis” refers to the process by which a physician “ ‘rule[s] in’ all scientifically plausible causes of the plaintiffs injury. The physician then ‘rules out’ the least plausible causes of injury until the most likely cause remains.” Glastetter, 252 F.3d at 989 (8th Cir.2001). The remaining cause is the expert’s conclusion. Id. In conducting a differential diagnosis, physicians often use case reports — “a doctor’s account of a particular patients’ reaction to a drug or other stimulus, accompanied by a description of the relevant surrounding circumstances.” Id. Here, Drs. Kulig, Iffy, and Jose performed a differential diagnosis, reviewing Ms. Hollander’s medical history and medical records, excluding other causes of her stroke, and then attributing the stroke to Parlodel. They relied in part on case reports, both those filed with the FDA and those published in the professional literature. Dr. Kulig expressed the view that the onset of Ms. Hollander’s initial symptom (i.e., developing a headache several days after giving birth) and the timing of her stroke (several days after her discharge from the hospital) fit a general pattern seen in patients suffering adverse reactions to Parlodel and was also consistent with the pharmokinetics of the drug. With regard to differential diagnoses, courts have reached contrasting conclusions as to reliability under Daubert. Compare Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262-66 (4th Cir.1999) (holding that “[a] reliable differential diagnosis provides a valid basis for an expert opinion on causation” and" }, { "docid": "12507903", "title": "", "text": "to establish a temporal proximity between exercise-induced asthma and freon inhalation. As a result, the Eighth Circuit affirmed the district court’s exclusion of causation testimony. A. PEDRO G. MENDOZA, M.D. Dr. Pedro G. Mendoza has been retained by Karen Anderson to testify in accordance with the information contained in her medical records. Dr. Mendoza is a treating physician specializing in pulmonary medicine. Anderson was seen by Dr. Mendoza on July 7, 2006, July 28, 2006, December 19, 2006, and April 23, 2007. Dr. Mendoza diagnosed Anderson with RADS resulting from hydrogen sulfide exposure. Hess Corporation seeks to exclude any causation testimony by Dr. Mendoza, contending that Dr. Mendoza failed to make a differential diagnosis in determining that Anderson was exposed to hydrogen sulfide on June 20, 2006, and that this exposure caused her to develop RADS. Hess Corporation relies on the actual language of the medical records and the medical tests performed on Anderson in determining that Dr. Mendoza failed to make a differential diagnosis. However, Hess Corporation never deposed Dr. Mendoza. “In performing a differential diagnosis, a physician begins by ‘ruling in’ all scientifically plausible causes of the plaintiffs injury. The physician then ‘rules out’ the least plausible causes of injury until the most likely cause remains. The final result of a differential diagnosis is the expert’s conclusion that a defendant’s product caused (or did not cause) the plaintiffs injury.” Glastetter v. Novartis Pharmaceuticals Corp., 252 F.3d 986, 989 (8th Cir.2001). In a factually similar case, the Eighth Circuit has found causation testimony admissible when the treating physician ruled out other possible causes of the victim’s illness, concluded that the victim developed the medical condition as a result of his exposure to a specific toxic fume, and relied on published studies linking the medical condition to the toxic fume. See Mattis, 295 F.3d at 861. In other words, essential to the admission of causation testimony in toxic tort cases is that the medical expert has performed a reliable differential diagnosis by ruling out other possible causes of the victim’s condition. The Court finds the evidence insufficient to determine whether" }, { "docid": "1387037", "title": "", "text": "until the most probable cause is isolated.” Id. (citing Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.1999)). Dr. Sprince’s attempt to use a differential diagnosis to establish the inhalation or ingestion of freon caused Bland’s exercise-induced asthma fails because Dr. Sprince’s own testimony acknowledged the cause of exercise-induced asthma in the majority of cases is unknown. Where the cause of the condition is unknown in the majority of cases, Dr. Sprince cannot properly conclude, based upon a differential diagnosis, Bland’s exposure to freon was “the most probable cause” of Bland’s exercise-induced asthma. As a practical matter, Dr. Sprince’s causation opinion could not possibly be based upon a reasonable degree of medical certainty. The district court further concluded Dr. Sprince failed to eliminate scientifically other possible causes as part of her differential diagnosis. Even if Dr. Sprince were able to link exercise-induced asthma to freon inhalation or ingestion, Dr. Sprince must also rule out other possible causes. Id. at 1209 (recognizing “an expert must ‘rule in’ the suspected cause as well as ‘rule out’ other possible causes” (citing Nat’l Bank of Commerce of El Dorado v. Associated Milk Producers, Inc., 22 F.Supp.2d 942, 963 (E.D.Ark.1998), aff'd, 191 F.3d 858 (8th Cir.1999))). Dr. Sprince appears to have focused on the temporal link between Bland’s exposure to the freon and the subsequent diagnosis of exercise-induced asthma. It does not appear Dr. Sprince ever conducted an investigation or analysis of Bland’s home or other environments to determine other possible causes of Bland’s exercise-induced asthma. See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir.2006) (holding the district court acted within its discretion in excluding the testimony of a toxicologist on medical causation where the toxicologist did not exclude confounding factors leaving open the possibility of competing causes). Where the majority of cases of exercise-induced asthma have no known cause, and where Dr. Sprince failed to do an investigation and analysis of Bland’s home or other environments in search of other possible causes, the district court did not abuse its considerable discretion in determining Dr. Sprince’s differential diagnosis did" }, { "docid": "17426343", "title": "", "text": "possible causes of the injury. Jahn v. Equine Services, PSC, 233 F.3d 382, 390 (6th Cir.2000). The fact that several possible causes might remain “uneli-minated” goes to the accuracy of the conclusion and not to the soundness of the methodology. Id. Similarly, weaknesses in the factual basis of an expert witness’ opinion “bear on the weight of the evidence rather than on its admissibility.” McLean, 224 F.3d at 801. Defendant argues that Dr. Brautbar is not qualified to offer an expert opinion on causation in this case and that his methodology is unreliable. While it is true that Dr. Brautbar is not independently qualified to exclude the possible causes of Richard Asad’s cerebral palsy because he is not board certified in obstetrics and gynecology, pediatrics, pediatric neurology or radiology and does not practice in any of these areas, he properly relied on Dr. Wiz-nitzer’s expert opinion in expressing his own opinion on causation. (Hearing Tr. II at 35-37; Brautbar Dep. at 72). Rule 703 of the Federal Rules of Evidence specifically allows experts, in reaching their opinions, to rely on “facts outside the record and not personally observed, but of the kind that experts in his or her field reasonably rely on in forming opinions.” Under Rule 703, an expert’s testimony may be formulated by the use of the facts, data and conclusions of other experts. Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., 685 F.2d 94, 102 n. 10 (3rd Cir.1982). Dr. Wiznitzer’s differential diagnosis was that an insult to Richard Asad’s white matter, occurring some time in the two weeks prior to his birth, led to or was a significant contributing factor to Richard’s PVL and cerebral palsy. Based on Dr. Wiznitzer’s diagnosis of the nature and timing of the injurious event and his own conclusions regarding Ms. Asad’s level of CO exposure, Dr. Brautbar concluded that the CO exposure was a “substantial factor” in the cause of Richard’s PVL and cerebral palsy. Defendant’s objections to Dr. Brautbar’s methodology mirror their objections to Dr. Wiznitzer’s differential diagnosis which have already been addressed. Thus, Dr. Brautbar’s methodology is" }, { "docid": "19091988", "title": "", "text": "expert) affect the weight that the jury should give the expert’s testimony and not the admissibility of that testimony”). F. Dr. Moreno’s opinion is distinguishable from differential-diagnosis opinions that have been excluded in other cases A review of several cases in which differential-diagnosis testimony has been excluded further solidifies our conclusion that Dr. Moreno’s opinion falls on the admissible side of the elusive line separating reliable opinions from “junk science.” In particular, we believe that the case of Downs v. Perstorp Components, Inc., 126 F.Supp.2d 1090 (E.D.Tenn.1999), upon which the district court heavily relied, is materially distinguishable. For starters, the court in Downs gave great weight to Moore v. Ashland Chemical Inc., 151 F.3d 269 (5th Cir.1997) (en banc), a case that takes a minority position by implicitly rejecting the validity of differential diagnosis in the formulation of medical-causation opinions. See Westberry, 178 F.3d at 263 (contrasting the exclusion of a causation opinion in Moore with opinions from several other circuits that recognize differential diagnosis as a reliable methodology). Reliance on Moore by the district court in Downs was thus misplaced in light of Glaser v. Thompson Medical Co., 32 F.3d 969, 977 (6th Cir.1994), which explicitly recognized the admissibility of properly developed differential-diagnosis opinions in this circuit. Moreover, under a proper differential-diagnosis analysis, the opinion offered by the expert in Downs differs from Dr. Moreno’s opinion in several key ways. In Downs, Dr. Kilburn was the plaintiffs expert who concluded that the plaintiff had suffered severe brain damage as a result of a single exposure to a polyurethane polymer. 126 F.Supp.2d at 1093. The defense presented voluminous testimony from other experts that Dr. Kilburn’s methods of testing the plaintiff for injury were novel and not generally accepted in the neuropsychological community. Id. at 1108-15. These competing experts concluded, based on their own tests, that the plaintiff had no neurological impairment that could have resulted from the chemical exposure. Id. Dr. Kilburn therefore did not follow a reliable method to ascertain the nature of the plaintiffs injury, and he had no reliable information with which to “rule in” chemical exposure" }, { "docid": "10585630", "title": "", "text": "flow of air within the store. Id. at 78-79. Without considering such information showing “the plaintiffs actual level of exposure,” Dr. Gallagher’s opinion that exposure to refrigerant fumes caused Ms. Hare’s medical condition is speculative at best and therefore not scientifically reliable. Westberry, 178 F.3d at 263; see also Cavallo, 892 F.Supp. at 764. The amount and quality of information Dr. Gallagher had about the level of Ms. Hare’s exposure to refrigerant gas contrasts sharply with the information consid ered by the plaintiffs expert in Westberry. In Westberry, the plaintiff was able to provide descriptive and reliable information about the high levels of airborne talc to which he was exposed, which supported his expert’s opinion that this exposure caused the plaintiffs sinus problems. Westberry, 178 F.3d at 264. Unlike the plaintiffs report in Westberry, Ms. Hare’s report to Dr. Gallagher about the pressure of refrigerant in Rite Aid’s system is not a report upon which Dr. Gallagher could reasonably rely in finding substantial exposure to refrigerant fumes in Ms. Hare’s case, especially considering Ms. Hare’s lack of expertise on refrigerants and refrigeration systems. Like the expert testimony excluded in Allen and Wintz, Dr. Gallagher’s report is speculative at best and not based on sufficient information about the level of Ms. Hare’s chemical exposure to offer a scientifically reliable opinion on causation. See Daubert, 509 U.S. at 590, 113 S.Ct. 2786 (requiring expert testimony to be based on “more than subjective belief or unsupported speculation”); Bryte, 429 F.3d at 477 (“Daubert aims to prevent expert speculation”); Allen, 102 F.3d at 198 (excluding expert who had no direct evidence of the level of the plaintiffs chemical exposure at work but relied on a worker’s report and extrapolations based on information about other workplaces); Wintz, 110 F.3d at 513 (excluding expert who did not review medical records or investigate the plaintiffs level of exposure or other information about her work environment). The Court concludes that Dr. Gallagher’s opinion is not based on specialized knowledge in toxicology or a reliable differential diagnosis of toxic exposure to refrigerant fumes, and therefore grants Defendant’s Motion in" }, { "docid": "18478624", "title": "", "text": "Differential diagnoses are presumptively admissible and a court therefore only excludes scientifically invalid diagnoses. Glastetter, 252 F.3d at 989. B. Specific Causation Experts 1. Dr. John Williams Dr. Williams is an ophthalmologist who most recently has focused on occupational medicine rather than ophthalmology. Dr. Williams offers an opinion that Viagra caused both Martin’s and Stanley’s NAION. Pfizer challenges the admissibility of Dr. Williams’s testimony because (1) his general causation opinion is based on Dr. Hayreh’s theory, which this Court already excluded as unreliable; (2) his differential diagnosis is not reliable because he cannot rule out that Plaintiffs’ NAION was caused by preexisting risk factors rather than by Viagra use; (3) he does not have a scientifically valid method for choosing Viagra as the most likely cause of Plaintiffs’ NAION; (4) he applied a different, lower standard to determine causation in this litigation than what he would use in the medical realm; and (5) his opinion is based solely on temporality, which is insufficient to establish causation. Plaintiffs respond by pointing to Dr. Williams’s years of experience as a practicing ophthalmologist and by quoting his statements in his two expert reports and in his deposition that it is his opinion to a reasonable degree of certainty that Viagra provoked NAION in Plaintiffs. Dr. Williams’s specific causation opinion in both Plaintiffs’ cases is inadmissible. The Court does not doubt Dr. Williams’s credentials as an ophthalmologist. Rather, the Court finds that the methodology that Dr. Williams used in reaching his opinions is not scientifically valid. Plaintiffs argue that Dr. Williams’s used a differential diagnosis to reach his conclusions. However, Dr. Williams admitted in his deposition that he could not rule out underlying risk factors as the cause of Plaintiffs’ NAION. Plaintiff has not produced any evidence that Dr. Williams used any particular test or methodology for de termining that Viagra and not underlying risk factors caused Plaintiffs’ NAION. To the extent that Dr. Williams relied on temporality in conducting his differential diagnosis, as noted above, temporality is insufficient alone to establish causation. Further, Dr. Williams admitted that, in reaching his conclusion about causation" }, { "docid": "12507904", "title": "", "text": "differential diagnosis, a physician begins by ‘ruling in’ all scientifically plausible causes of the plaintiffs injury. The physician then ‘rules out’ the least plausible causes of injury until the most likely cause remains. The final result of a differential diagnosis is the expert’s conclusion that a defendant’s product caused (or did not cause) the plaintiffs injury.” Glastetter v. Novartis Pharmaceuticals Corp., 252 F.3d 986, 989 (8th Cir.2001). In a factually similar case, the Eighth Circuit has found causation testimony admissible when the treating physician ruled out other possible causes of the victim’s illness, concluded that the victim developed the medical condition as a result of his exposure to a specific toxic fume, and relied on published studies linking the medical condition to the toxic fume. See Mattis, 295 F.3d at 861. In other words, essential to the admission of causation testimony in toxic tort cases is that the medical expert has performed a reliable differential diagnosis by ruling out other possible causes of the victim’s condition. The Court finds the evidence insufficient to determine whether Dr. Mendoza made a proper differential diagnosis in determining that Karen Anderson was exposed to hydrogen sulfide on June 20, 2006, and that this exposure caused her to develop RADS. Anderson has failed to provide evidence of the methodology which Dr. Mendoza used to determine the cause of Anderson’s symptoms and, as a result, the Court is unable to determine whether Dr. Mendoza’s methodology is sufficiently reliable under Rule 702 and Daubert. Dr. Mendoza was never deposed in this case. Further, the record is insufficient to determine whether Dr. Mendoza considered other possible causes and excluded each possible cause until only one remained. Accordingly, the Court will defer ruling on the admission of Dr. Mendoza’s testimony on causation until trial, and only after an evidentiary hearing is held outside the presence of the jury to determine whether Dr. Mendoza made a differential diagnosis. Counsel for the Plaintiff indicated at oral argument that Dr. Mendoza will likely not testify at trial. B. NICHOLAS H. NEUMANN, M.D. Dr. Nicholas H. Neumann has been retained by Anderson to" }, { "docid": "10585619", "title": "", "text": "that any of the harmful properties of any or all of the chemicals might have been expressed in the exposed individual. Id. at 764. In the present cases, Plaintiffs offer the opinions of their treating physicians to establish specific causation through differential diagnosis but fail to show that these physicians reliably applied the method in formulating their opinions. The proffered physicians lacked sufficient scientific knowledge about R-404A toxicity and adequate information about Plaintiffs’ exposure to the refrigerant to reliably rule in R-404A exposure as the cause of Plaintiffs’ injuries. Moreover, the proffered physicians did not adequately inquire about or investigate Plaintiffs’ medical histories in order to properly determine what possible causes of their medical conditions should be ruled in. The physicians also failed to inquire about or investigate whether Plaintiffs’ were exposed to possible toxins other than refrigerant gas in order to determine whether such' toxic exposures should be ruled in as possible causes of Plaintiffs’ medical conditions. The Court holds that Plaintiffs’ treating physicians did not reliably apply the accepted method of differential diagnosis in determining that exposure to refrigerant caused or could have caused Plaintiffs’ injuries. See Westberry, 178 F.3d at 265 (“differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation”); Cooper, 259 F.3d at 202; Fed.R.Evid. 702 advisory committee’s note (2000 amendment) (courts may consider whether an expert has adequately accounted for alternative explanations in deciding whether the expert’s opinion is reliable). For this reason, Plaintiffs’ experts on specific causation must be excluded. 3. Plaintiffs’ Experts on Causation The Plaintiffs’ expert witnesses on the causation issue in these cases are discussed individually in this section. a. Mary Ellen Gallagher, M.D. The Court excludes the report and testimony of Dr. Mary Ellen Gallagher because Dr. Gallagher lacks expertise in exposure to refrigerant gas, and her opinion is not based on sufficient facts or reliable application of accepted methods. The opinion of Dr. Gallagher, Carrie Hare’s treating physician, is offered to establish that the refrigerant leak detected and repaired at" }, { "docid": "18478623", "title": "", "text": "252 F.3d 986, 989 (8th Cir.2001). A temporal relationship between the ingestion of a drug and the onset of particular symptoms, alone, “is not scientifically valid proof of causation.” Id. at 990. A general causation opinion is a prerequisite to a proper differential diagnosis; it “assumes that the final, suspected cause remaining after this process of elimination must actually be capable of causing the injury.” Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254 (2d Cir.2005) (quotation omitted) (emphasis in original). “[A] medical opinion about causation, based upon a proper differential diagnosis, is sufficiently reliable to satisfy Daubert.” Turner v. Iowa Fire Equipment Co., 229 F.3d 1202, 1208 (8th Cir.2000). However, a differential diagnosis that fails “to consider all the possible causes, or to exclude each potential cause until only one remain[s], or to consider which of two or more non-excludable causes [is] the more likely to have caused the condition” is not a proper differential diagnosis to determine causation, and a causation opinion based on that inadequate methodology is not admissible to show causation. Id. Differential diagnoses are presumptively admissible and a court therefore only excludes scientifically invalid diagnoses. Glastetter, 252 F.3d at 989. B. Specific Causation Experts 1. Dr. John Williams Dr. Williams is an ophthalmologist who most recently has focused on occupational medicine rather than ophthalmology. Dr. Williams offers an opinion that Viagra caused both Martin’s and Stanley’s NAION. Pfizer challenges the admissibility of Dr. Williams’s testimony because (1) his general causation opinion is based on Dr. Hayreh’s theory, which this Court already excluded as unreliable; (2) his differential diagnosis is not reliable because he cannot rule out that Plaintiffs’ NAION was caused by preexisting risk factors rather than by Viagra use; (3) he does not have a scientifically valid method for choosing Viagra as the most likely cause of Plaintiffs’ NAION; (4) he applied a different, lower standard to determine causation in this litigation than what he would use in the medical realm; and (5) his opinion is based solely on temporality, which is insufficient to establish causation. Plaintiffs respond by pointing to Dr. Williams’s years of" }, { "docid": "10253687", "title": "", "text": "causation purposes is: At what levels of exposure do what kinds of harm occur? Next the Court in Cavallo takes up the testimony of Dr. Bellanti who relied in forming his causation opinion primarily upon the methodology of differential diagnosis: Although neither party clearly explains the methodology applied by Dr. Bellanti, it appears from a review of his written report as well as his deposition testimony that he primarily applied a methodology of differential diagnosis. Thus, he determined from a review of Ms. Cavallo’s medical history, from her description of the spill incident, from his initial examination of her, and from the timing of the spill in relation to her development of symptoms, that her exposure to the petroleum hydrocarbons could have caused her chronic illnesses. Dr. Bellanti then examined other possible causes of her symptoms (such as her history of smoking 1.5 packs a day for at least 20 and as much as 40 years, possible allergies, possible MSG in the Chinese food eaten on the night of the spill, and Ms. Cavallo’s exposure to a previous spill in 1960), and ruled out each one. The process of differential diagnosis is undoubtedly important to the question of “specific causation.” If other possible causes of an injury cannot be ruled out, or at least the probability of their contribution to causation minimized, then the “more likely than not” threshold for proving causation may not be met. But, it is also important to recognize that a fundamental assumption underlying this method is that the final, suspected “cause” remaining after this process of elimination must actually be capable of causing the injury. That is, the expert must “rule in the suspected cause as well as ‘rule out’ other possible causes. And, of course, expert opinion on the issue of “general causation” must be derived from a scientifically valid methodology.” Id. at 770-771. The court then commented on Dr. Bellanti’s unawareness of the duration and intensity of Ms. Cavallo to AvJet fumes: With respect to the level of Ms. Cavallo’s exposure, Dr. Bellanti concluded only that she sustained a “massive exposure.” (Belanti Tr.," } ]

[ { "docid": "16171640", "title": "", "text": "estate. The Banks contend that in this circumstance, 11 U.S.C. § 506(c) does not permit a surcharge motion to be brought by a Debtor. Compton, as the debtor-in-possession, has standing to bring a § 506(c) surcharge motion. 11 U.S.C. § 1107(a). Compton owes its professionals the money that it seeks through the surcharge motion. Compton incurred its professionals’ fees and expenses to preserve and dispose of the residential development that was the subject of the Chapter 11 reorganization, and a recovery of those fees and expenses would redound to the benefit of the estate’s administrative creditors. We, therefore, consider Compton’s § 506(c) claim on its merits. II. Compton’s § 506(c) Claim We apply the same standard of review to the bankruptcy court’s decision as the district court did, affording the district court’s decision no added weight. See In re Lazar, 83 F.3d 306, 308 (9th Cir. 1996). We apply a clearly erroneous standard to the bankruptcy court’s findings of fact and review its conclusions of law de novo. See Id. The Debtor’s request for a surcharge covers the following services: (1) sales procedures and approvals required by the cash-collateral stipulation; (2) evaluation and removal of mechanics’ liens; (3) title, sales, escrow, closing costs, and evaluation efforts; (4) costs associated with the surcharge motion; and (5) construction, operation, and marketing costs. “We allow payment of administrative expenses from the proceeds of secured collateral when incurred primarily for the benefit of the secured creditor or when the secured creditor caused or consented to the expense.” In re Cascade Hydraulics & Utility Serv., Inc., 815 F.2d 546, 548 (9th Cir.1987). The controlling provision of the Bankruptcy Code is 11 U.S.C. § 506(c) which provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. Under § 506(c), therefore, Compton must demonstrate that the expenses it seeks to surcharge against the Banks were reasonable, necessary, and beneficial to the Banks’ recovery, or that the Banks caused or consented" } ]

[ { "docid": "1101411", "title": "", "text": "If such an administrative claim exists, the Trustee may seek to surcharge the Bank to satisfy it. Because of such potentialities, a discussion regarding the Trustee’s ability to surcharge the Bank’s personal property collateral for compliance with environmental statutes is warranted. Three elements must be present in order to surcharge a secured creditor with administrative expenses pursuant to § 506(c): (1) the expense must be necessary for the preservation or disposal of the collateral, (2) the amount of the expense must be reasonable, and (3) the secured creditor must benefit from the expense. French Mkt. Homestead, FSA v. P.C. Ltd. (Matter of P.C., Ltd.), 929 F.2d 203, 205 (5th Cir.1991); Delta Towers, 924 F.2d at 76; Trim-X, 695 F.2d at 299; Noland v. Williamson (In re Williamson), 94 B.R. 958, 962 (Bankr.S.D.Ohio 1988); United States v. Van Vactor, Francis & Martin (In re Crouch), 51 B.R. 331, 332-33 (Bankr.D.Or.1985). Prepetition expenses are generally not recoverable under § 506(c). 3 L. KING, COLLIER ON BANKRUPTCY ¶ 506.06, at 506-59 (15th ed. 1991). The burden to demonstrate the existence of the elements is on the party seeking to surcharge. Delta Towers, 924 F.2d at 76. In T.P. Long, the court addressed the issue of whether a bank's validly secured personal property collateral may be surcharged under § 506(c) to recover costs for compliance with CERCLA. 45 B.R. at 287. The court concluded the costs were reasonable and necessary for preservation or disposal of the secured creditor’s collateral. Id. The remaining issue was whether the secured creditor benefitted from any compliance with CERCLA. The court ruled that the secured creditor did not receive a benefit in the traditional sense or as a holder of a secured claim. Id. at 288. The court concluded: [T]he expenditure made by the E.P.A. did not discharge a liability of, and hence did not confer a benefit on [the secured creditor]. Since the court has failed to find any other possible benefit to [the secured creditor] ... the court concludes that the E.P.A. cannot recover any portion of its expenditure from [the secured creditor] pursuant to 11 U.S.C." }, { "docid": "4604533", "title": "", "text": "the secured creditor. It only permits the trustee to recover his or her reasonable and necessary costs and expenses. While the benefit imposes a ceiling on the trustee’s recovery, it does not impose a floor: To the extent that the secured creditor is permitted to keep part of the benefit, this is a windfall to the creditor. In this case, for example, the benefit is shared approximately equally by the trustee and the secured creditor, and American has received a windfall worth approximately $400,000. 1. Preserving and Disposing of Collateral—Statutory Language To satisfy the benefit test, the debt- or must establish in quantifiable terms that it expended funds directly to protect and to preserve the collateral. Cascade Hydraulics, supra, 815 F.2d at 548; Brookfield PCA v. Borron, 738 F.2d 951, 952 (8th Cir.1984); Sells v. Sonoma V (In re Sonoma V), 24 B.R. 600, 603-05 (9th Cir. BAP 1982). American argues that the expenditures by the trustee in this case were neither to protect nor to preserve the property here at issue. Instead, American argues, the expenditures were to improve the property, and thus fall outside the scope of section 506(c). Some care is required in interpreting the statutory language permitting the trustee to surcharge the costs and expenses of “preserving, or disposing of, such property”. Some costs of preserving collateral are not surchargeable. For example, a trustee may not store property for a year at substantial cost to the estate, and then surcharge the collateral for the storage costs. In re Beker Industries Corp., 89 B.R. 336, 341-42 (S.D.N.Y.1988). The Court does not believe that section 506(c) should be read as narrowly as American urges. Courts have long recognized, for example, that upon the harvesting of crops a debtor may surcharge the collateral for costs of maintaining, harvesting, and marketing the crops. See e.g., In re Hardage, 69 B.R. 681, 685 (Bankr.N.D.Tex.1987), rev’d on other grounds, 837 F.2d 1319 (5th Cir.1988); Randall v. Bank of Viola (In re Randall), 58 B.R. 289, 290-91 (Bankr.C.D. Ill.1986); First National Bank v. Hamilton (In re Hamilton), 18 B.R. 868, 872-73 (Bankr.D.Colo.1982). Similarly," }, { "docid": "1101386", "title": "", "text": "and, (3) any costs of compliance with environmental statutes are therefore entitled to administrative priority. A trial will take place at which time parties may present additional evidence. E. Requested Surcharge of Bank’s Personal Property Proceeds Dock's Corner claims it is entitled to surcharge the proceeds from the sale of the Bank’s personal property collateral for both unpaid rent and the costs of any environmental clean up. 11 U.S.C. § 506(c). The Bank and Trustee argue that Dock’s Corner lacks standing to surcharge and, even assuming standing exists, Dock’s Corner cannot satisfy the statutory elements to surcharge the Bank’s proceeds. Section 506(c) states: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. Section 506(c) is an exception to the traditional rule that administrative expenses may not be charged against the collateral of a secured creditor. Matter of Trim-X, 695 F.2d 296, 301 (7th Cir.1982); Guy v. Grogan (In re Staunton Indus., Inc.), 74 B.R. 501, 504 (Bankr.E.D.Mich.1987); In re Wyckoff, 52 B.R. 164, 166 (Bankr.W.D.Mich.1985). However, a secured creditor may be surcharged when expenses to preserve its property have been incurred by the estate, or the creditor has caused or consented to such expense. Trim-X, 695 F.2d at 301; Staunton Indus., 74 B.R. at 504; Wyckoff, 52 B.R. at 166. 1. Standing to Seek Surcharge Reported cases are divided on the issue of whether a party other than the trustee or debtor in possession may be able to surcharge a secured creditor’s collateral pursuant to § 506(c). Courts holding that a strict interpretation of § 506(c) is required, therefore the trustee is the only party with standing to assert surcharge, include: White Front Feed & Seed, Inc. v. State Nat’l Bank of Platteville (In re Ramaker), 117 B.R. 959 (Bankr.N.D.Iowa 1990); Central States, Southeast and Southwest Areas Pension Fund v. Robbins (In re Interstate Motor Freight Sys., IMFS, Inc.), 86 B.R. 500 (Bankr.W.D.Mich.1988) (herein “Interstate II”); Central States, Southeast and Southwest Areas Pension" }, { "docid": "4604526", "title": "", "text": "on this motion that the trustee has not waived his right to ask for a surcharge against American’s collateral. Ill. Analysis The estate created by the filing of a bankruptcy case includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” Bankruptcy Code § 541(a)(1), 11 U.S.C. § 541(a)(1) (1979). The bankruptcy estate’s assets are subject to all liens and encumbrances existing when the petition is filed. Central Bank v. Cascade Hydraulics & Utility Service, Inc. (In re Cascade Hydraulics & Utility Service, Inc.), 815 F.2d 546, 548 (9th Cir.1987). These security interests must be respected by the trustee, except to the extent that they may be avoided under the Bankruptcy Code. Administrative expenses and the general costs of reorganization may not generally be charged against secured collateral. Cascade Hydraulics, supra, 815 F.2d at 548; General Electric Credit Corporation v. Levin & Weintraub (In re Flagstaff Foodservice Corp.), 739 F.2d 73, 76 (2d Cir.1984). Administrative expenses may normally be charged only against unsecured assets of the estate. Section 506(c) is not intended as a substitute for the normal recovery of administrative expenses from the debtor’s estate. Brookfield PCA v. Borron, 738 F.2d 951, 953 (8th Cir.1984); In re Trim-X, Inc. 695 F.2d 296, 301 (7th Cir.1983). A surcharge is also not permitted for general expenses of an unsuccessful reorganization effort. In re Combined Crofts Corp., 54 B.R. 294, 297-98 (Bankr.W.D.Wis.1985). The trustee has the burden of proving that his costs and expenses may be surcharged against a creditor’s collateral. See, e.g., Flagstaff, supra, at 77. In this case the trustee claims that he qualifies for an exception to the foregoing rules. A. Statute An exception permitting the surcharge of collateral has long been recognized under the theory of unjust enrichment, where the trustee contributes value to the collateral. This exception is codified in Bankruptcy Code § 506(c), 11 U.S.C. § 506(c) (1979): The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit" }, { "docid": "4604531", "title": "", "text": "F.2d 544, 547 (9th Cir.1958). In this cáse American did agree with the trustee to complete the construction of the building, and to advance some $2,000,000 toward this construction. However, this agreement does not fall within the scope of this exception. Mere cooperation with the debtor does not make a secured creditor liable for expenses of administration. Cascade Hydraulics, supra, at 548; Flagstaff I, 739 F.2d at 77. Unless American specifically consented to the priority treatment of these expenses, it did not give the consent required for this exception. In re Sherrill, 78 B.R. 804, 809 (Bankr.W.D.Tex.1987). The parties agree that American has not agreed to the trustee’s priming of its security interest. Section 506(c) permits a surcharge against collateral even where the value of the collateral has declined through use or market fluctuations. 4 Collier on Bankruptcy 11552.02 (15th ed. 1988), at 552-9. Chapter 11 is not designed to permit a debtor or the trustee to gamble a secured creditor’s money on a successful reorganization. Any such gamble should be made only with funds belonging to unsecured creditors and the shareholders, and normally only with their consent. American has raised the issue of what should be the nature of a surcharge award ed by the Court—a judgment for cash against American, or a lien against the property. The parties have stipulated that the surcharge should be treated as a lien against the property. C. Benefit to American There must be a benefit to the secured creditor before the trustee is entitled to a surcharge under section 506(c). If the trustee has spent money, but has not conferred any benefit on the creditor, no surcharge is permitted. In re AFCO Enterprises, 35 B.R. 512, 515 (Bankr.D.Utah 1983). The benefit test establishes a ceiling on the recovery of the trustee: The trustee may recover only to the extent of the benefit conferred on American. The actual surcharge is further limited to those expenses that were reasonable and necessary to obtain this benefit. It is noteworthy that section 506(c) does not usually permit the trustee to recover the entire benefit conferred on" }, { "docid": "17722081", "title": "", "text": "JKJ Chevrolet, 26 F.3d at 483, “[gjenerally, administrative expenses are paid from the unencumbered assets of a bankruptcy estate rather than from secured collateral.” Section 506(c) codifies a common law exception to this general rule. That section states: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C. § 506(c). In JKJ Chevrolet we construed the statute narrowly only to allow “the trustee to recover administrative expenses from the collateral of a secured creditor to the extent that the expenditures benefit the secured creditor.” JKJ Chevrolet, 26 F.3d at 483 (emphasis added). The common law exception permitted a holder of secured collateral to be surcharged only when “a debtor, debtor in possession or trustee had expended funds to preserve or dispose of the very property (collateral) securing the debt.” In re Visual Indus., Inc., 57 F.3d 321, 324 (3d Cir.1995). A variety of expenditures were allowed — “appraisal fees, auctioneer fees, advertising costs, moving expenses, storage charges, payroll of employees directly and solely involved with the disposition of the subject property, maintenance and repair costs, and marketing costs,” 3 Lawrence P. King et al., Collier on Bankruptcy ¶ 506.06, at 506-60 (15th ed.1996) — but there were two keys: (1) there had to be actual expenditures that (2) directly related to the preservation or disposal of the secured creditor’s collateral. Cf. Visual Indus., 57 F.3d at 325. Congress’s intent in enacting § 506(c) was to codify both aspects: Any time the trustee or debtor in possession expends money to provide for the reasonable and necessary cost and expenses of preserving or disposing of a secured creditor’s collateral, the trustee or debtor in possession is entitled to recover such expenses from the secured party or from the property securing an allowed secured claim held by such party. 124 Cong. Ree. H11089 (Sept. 28, 1978) (statement of Rep. Edwards), reprinted in U.S.Code Cong. & Admin.News 1978 pp. 5787, 6451 (emphases added). This legislative intent" }, { "docid": "23408429", "title": "", "text": "of administering the debtor’s estate are not charged against a secured creditor’s collateral. Precision Steel Shearing, Inc. v. Fremont Financial Corp. (In re Visual Industries, Inc.), 57 F.3d 321, 324 (3d Cir.1995). Section 506(c) of the Bankruptcy Code, however, allows the trustee, or in this case the unsecured creditors committee standing in the debt- or’s shoes, to “recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” Courts have limited recovery under this section to “expenses that are specifically incurred for the express purpose of ensuring that the property is preserved and disposed of in a manner that provides the secured creditor with a maximum return on the debt and also apportions those costs to the secured creditor who, realistically, is assuming the asset.” United Jersey Bank v. Miller (In re C.S. Associates), 29 F.3d 903, 907 (3d Cir.1994). In other words, the Section 506(c) surcharge applies when the estate incurs expenses to liquidate collateral for the sole or primary benefit of a secured creditor rather than the estate. The party seeking to charge the costs of administering and disposing of the debtor’s assets to a specific creditor has the “burden of proving that his costs and expenses may be surcharged against a creditor’s collateral.” American Savings & Loan Association v. Gill (In re North County Place, Ltd.), 92 B.R. 437, 443 (Bankr.C.D.Cal.1988). The plaintiff must show that the costs incurred in preserving or administering the debtor’s assets resulted in a quantifiable benefit to the creditor. Id. at 445. The question of “whether a benefit has been conferred on a creditor is one of fact.” New York National Bank v. First Fidelity Bank, 1991 WL 208813 *3 (D.N.J.). If the plaintiff successfully argues that the secured creditor received a quantifiable benefit from the sale or disposition of its collateral, then the fees and costs of the sale that inured to the secured creditor’s benefit may be surcharged from the value of its collateral. The costs and expenses," }, { "docid": "23408428", "title": "", "text": "the debtor liquidated the inventory that secured its claim, the debtor received less than was owed to Liberty on the debtor’s guaranty. The court has determined that Liberty has an allowed secured claim in the amount of $750,000, an amount that is less than its total claim. Because Liberty is underse-cured, it is not entitled to attorney’s fees and costs pursuant to Section 506(b). In re Broomall Printing Corp., 131 B.R. 32, 35 (Bankr.D.Md.1991) [when the debtor liquidates collateral that is security for the creditor’s claim against it for an amount that is less than the amount of the creditor’s secured claim, the creditor is not entitled to attorney’s fees]. Liberty is therefore not entitled to attorney’s fees on its claim against the debtor in this case. 7. May the debtor surcharge Liberty? The plaintiff also seeks to surcharge Liberty by recovering the monies paid by the debtor to administer and sell its encumbered assets for the ultimate benefit of Liberty pursuant to Section 506(c) of the Bankruptcy Code. As a general rule, the costs of administering the debtor’s estate are not charged against a secured creditor’s collateral. Precision Steel Shearing, Inc. v. Fremont Financial Corp. (In re Visual Industries, Inc.), 57 F.3d 321, 324 (3d Cir.1995). Section 506(c) of the Bankruptcy Code, however, allows the trustee, or in this case the unsecured creditors committee standing in the debt- or’s shoes, to “recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” Courts have limited recovery under this section to “expenses that are specifically incurred for the express purpose of ensuring that the property is preserved and disposed of in a manner that provides the secured creditor with a maximum return on the debt and also apportions those costs to the secured creditor who, realistically, is assuming the asset.” United Jersey Bank v. Miller (In re C.S. Associates), 29 F.3d 903, 907 (3d Cir.1994). In other words, the Section 506(c) surcharge applies when the estate incurs expenses" }, { "docid": "18550432", "title": "", "text": "rents giving rise to cash collateral status). . Law review articles commenting on the issue, and discussing the conflicting case law, include Craig H. Averch et al.. The Treatment of Net Rents in Bankruptcy — Adequate Protection, Payment of Interest, Return of Collateral, or Reduction of Debt, 48 U.Miami L.Rev. 691 (1994); David G. Carlson, Adequate Protection Payments and the Surrender of Cash Collateral in Chapter II Reorganization, 15 Cardozo L.Rev. 1357 (1994); and Bonnie K. Donahue & W. David Edwards, The Treatment of Assignments of Rents in Bankruptcy: Emerging Issues Relating to Perfection, Cash Collateral, and Plan Confirmation, 48 Bus.Law. 633 (1993). . Section 506(a) provides in pertinent part: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor's interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor's interest ... is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest. .Section 506(c) provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. . Section 552(b)(2), as amended by the Bankruptcy Reform Act of 1994, Pub.L. 103-394 effective October 22, 1994, provides in pertinent part: Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this tide, and notwithstanding section 546(b) of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to amounts paid as rents of" }, { "docid": "4604532", "title": "", "text": "belonging to unsecured creditors and the shareholders, and normally only with their consent. American has raised the issue of what should be the nature of a surcharge award ed by the Court—a judgment for cash against American, or a lien against the property. The parties have stipulated that the surcharge should be treated as a lien against the property. C. Benefit to American There must be a benefit to the secured creditor before the trustee is entitled to a surcharge under section 506(c). If the trustee has spent money, but has not conferred any benefit on the creditor, no surcharge is permitted. In re AFCO Enterprises, 35 B.R. 512, 515 (Bankr.D.Utah 1983). The benefit test establishes a ceiling on the recovery of the trustee: The trustee may recover only to the extent of the benefit conferred on American. The actual surcharge is further limited to those expenses that were reasonable and necessary to obtain this benefit. It is noteworthy that section 506(c) does not usually permit the trustee to recover the entire benefit conferred on the secured creditor. It only permits the trustee to recover his or her reasonable and necessary costs and expenses. While the benefit imposes a ceiling on the trustee’s recovery, it does not impose a floor: To the extent that the secured creditor is permitted to keep part of the benefit, this is a windfall to the creditor. In this case, for example, the benefit is shared approximately equally by the trustee and the secured creditor, and American has received a windfall worth approximately $400,000. 1. Preserving and Disposing of Collateral—Statutory Language To satisfy the benefit test, the debt- or must establish in quantifiable terms that it expended funds directly to protect and to preserve the collateral. Cascade Hydraulics, supra, 815 F.2d at 548; Brookfield PCA v. Borron, 738 F.2d 951, 952 (8th Cir.1984); Sells v. Sonoma V (In re Sonoma V), 24 B.R. 600, 603-05 (9th Cir. BAP 1982). American argues that the expenditures by the trustee in this case were neither to protect nor to preserve the property here at issue. Instead, American argues," }, { "docid": "18521368", "title": "", "text": "court of appeals issued its decision in JKJ Chevrolet, Loudoun moved to join the Chapter 7 trustee as a § 506(c) claimant. We granted Loudoun’s motion in December 1994. We also granted Ford Credit’s request to reopen the record, and thereafter the three parties (Ford Credit, Loudoun, and the Chapter 7 trustee) introduced a stipulation of facts, together with supporting documents. Subsequently, a hearing was held on Ford Credit’s motion to alter or amend, at which time we took the matter under advisement. II. “Generally, administrative expenses are paid from the unencumbered assets of a bankruptcy estate rather than from secured collateral.” Ford Motor Credit Co. v. Reynolds & Reynolds Co. (In re JKJ Chevrolet, Inc.), 26 F.3d 481, 483 (4th Cir.1994) (footnote omitted). An exception to this general rule is set forth in § 506(c), which provides as follows: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C. § 506(c). “[Section 506(c) ] is equitable in origin, preventing a windfall to a secured creditor at the expense of the trustee or debtor in possession by shifting the costs of preserving or disposing of a secured party’s collateral from the bankruptcy estate to the secured party.” United States v. Boatmen’s First Nat’l Bank, 5 F.3d 1157, 1159 (8th Cir.1993). As mentioned before, we determined that Loudoun could surcharge Ford Credit under § 506(c) to recover the unpaid, postpetition rent. Ford Credit has filed a motion to alter or amend the judgment, asking us to reconsider our ruling. The Court of Appeals for the Fourth Circuit has recognized three grounds for altering or amending a prior judgment: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993). On reconsideration, Ford Credit raises two issues. The first concerns whether Loudoun may continue" }, { "docid": "4604528", "title": "", "text": "to the holder of such claim. Congress’ express intent in enacting section 506(c) was to assure that, any time a debtor in possession “expends money to provide for the reasonable and necessary costs and expenses of preserving or disposing of a secured creditor’s collateral, the ... debtor in possession is entitled to recover such expenses from the secured party or from the property securing an allowed secured claim held by such party.” 124 Cong.Rec. 32398 (cum. ed. Sept. 28, 1978) (statement of Rep. Edwards), reprinted in 1978 U.S.Code Cong. & Admin. News 6451. The trustee also argues that Bankruptcy Code § 552(b) permits the Court to award a surcharge based on the equities of the case. This argument is misplaced. Section 552(b) gives the Court equitable power to limit the application of a pre-petition security interest to post-petition “proceeds, product, offspring, rents, or profits”. But where as here the security at issue is the original security, section 552(b) does not give the Court any power to impose expenses on the secured creditor. Any such power must derive from section 506(c). B. Case Law There are three lines of authority interpreting section 506(c). The hard line, adopted by the Second and Eighth Circuits, requires the debtor to show, as a condition for imposing a surcharge on collateral, that the funds at issue were expended primarily for the benefit of the creditor, and that the creditor directly benefited from the expenditure. General Electric Credit Corp. v. Peltz (In re Flagstaff Foodservice Corp.), 762 F.2d 10, 12 (2d Cir.1985); Brookfield PCA v. Borron, 738 F.2d 951, 952 (8th Cir.1984). A second line of authority, adopted by the Third Circuit, takes a softer line, and permits the surcharge of collateral for general administrative expenses, where the expenses permit the debtor to preserve the going concern value of the estate. Equitable Gas Co. v. Equibank N.A. (In re McKeesport Steel Castings Corp.), 799 F.2d 91, 94-95 (3d Cir.1986). The Ninth Circuit has adopted a third view, which is a modified version of the hard line. The governing Ninth Circuit case is Central Bank v. Cascade" }, { "docid": "12434566", "title": "", "text": "S.Ct. at 631, that statement must be understood in the factual context of the Timbers case, which concerned the value to the creditor of being able to foreclose immediately. The Court explicitly distinguished the question of a change in the value of the collateral itself. See id. at 370, 108 S.Ct. at 630. American bankruptcy-law has long recognized the distinction between interest on a claim and appreciation of the collateral and has not applied the “no post-petition interest” rule to the return on interest-bearing collateral. See 3 L. King, Collier on Bankruptcy ¶ 502.02, at 502-36 (15th ed. 1991) (citing Sexton v. Dreyfus, 219 U.S. 339, 346, 31 S.Ct. 256, 258, 55 L.Ed. 244 (1911)). The bankruptcy court did not err. D. Attorney Fees The bankruptcy court allowed Jenson’s application for interim attorney fees in the amount of $27,525, but it refused to surcharge the FDIC for those fees pursuant to 11 U.S.C. § 506(c). Section 506(c) provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C. § 506(c). Section 506(c) typically comes into play where the trustee stores or maintains the collateral pending liquidation or where a creditor’s loan is secured by the debtor’s inventory or equipment and the debtor-in-possession continues to operate its business during Chapter 11 proceedings. See, e.g., In re Flagstaff Foodservice Corp., 739 F.2d 73 (2d Cir.1984). See generally 3 Collier on Bankruptcy ¶ 506.06, at 506-56 to 506-59. In affirming the bankruptcy court, the district court relied on In re Cascade Hydraulics & Utility Service, Inc., 815 F.2d 546 (9th Cir.1987). Cascade interpreted section 506(c) narrowly to require that the trustee or debtor-in-possession “establish, in quantifiable terms that it expended funds directly to protect or preserve the collateral.” Cascade, 815 F.2d at 548. Recovery is limited “to the extent that the secured creditor benefited from the services.” Id. (emphasis added). Section 506(c) was not intended as a substitute for recovery of normal administrative expenses from" }, { "docid": "4604527", "title": "", "text": "Section 506(c) is not intended as a substitute for the normal recovery of administrative expenses from the debtor’s estate. Brookfield PCA v. Borron, 738 F.2d 951, 953 (8th Cir.1984); In re Trim-X, Inc. 695 F.2d 296, 301 (7th Cir.1983). A surcharge is also not permitted for general expenses of an unsuccessful reorganization effort. In re Combined Crofts Corp., 54 B.R. 294, 297-98 (Bankr.W.D.Wis.1985). The trustee has the burden of proving that his costs and expenses may be surcharged against a creditor’s collateral. See, e.g., Flagstaff, supra, at 77. In this case the trustee claims that he qualifies for an exception to the foregoing rules. A. Statute An exception permitting the surcharge of collateral has long been recognized under the theory of unjust enrichment, where the trustee contributes value to the collateral. This exception is codified in Bankruptcy Code § 506(c), 11 U.S.C. § 506(c) (1979): The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. Congress’ express intent in enacting section 506(c) was to assure that, any time a debtor in possession “expends money to provide for the reasonable and necessary costs and expenses of preserving or disposing of a secured creditor’s collateral, the ... debtor in possession is entitled to recover such expenses from the secured party or from the property securing an allowed secured claim held by such party.” 124 Cong.Rec. 32398 (cum. ed. Sept. 28, 1978) (statement of Rep. Edwards), reprinted in 1978 U.S.Code Cong. & Admin. News 6451. The trustee also argues that Bankruptcy Code § 552(b) permits the Court to award a surcharge based on the equities of the case. This argument is misplaced. Section 552(b) gives the Court equitable power to limit the application of a pre-petition security interest to post-petition “proceeds, product, offspring, rents, or profits”. But where as here the security at issue is the original security, section 552(b) does not give the Court any power to impose expenses on the secured creditor. Any such power" }, { "docid": "12847578", "title": "", "text": "ordinary operating expense of the Property, the Debtor may not use the net Rents for such purpose without providing adequate protection. Id. Even assuming that case law supports the proposition that as long as the rental income is used to operate and maintain the property the secured party cannot complain of a lack of adequate protection, the case at hand involves a different issue. The issue here is whether rental income in which the creditor has a security interest can be used for “administrative type” expenses, ie. expert witness fees — not directly related to the operation, maintenance or preservation of the apartment project. In this Court’s opinion, such expenditures are permitted only if they meet the requirements of § 506(c) or are otherwise allowable as set forth below. Despite this Court’s conclusion that the debtor has not met its burden pursuant to § 363, the bankruptcy court may authorize the use of cash collateral for the “reasonable, and necessary costs, and expenses for preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(c). The parties in this case, apparently recognizing the authority to use cash collateral as provided by § 506(c), specifically consented to an order entered by the bankruptcy court on April 8, 1993, which provided that: A. The Debtor is hereby authorized to use all Rents, subject to the terms and conditions contained in this Order, for the payment of ordinary or necessary costs and expenses of operating and maintaining the Apartment Project. (Order at 3). Case law holds that “secured cash collateral” may be used for expenses if (1) the secured party consents to the expenses, (2) the expenses are reasonable and necessary to preserving or disposing of such property and are incurred primarily for the benefit of the secured creditor, or (3) the secured party “caused” the expenditure of such funds. See In re Trirn-X, Inc., 695 F.2d 296, 301 (7th Cir.1982); (court noted that although emphasis in statute is on benefit to secured creditor, consideration of “consent and causation” are still relevant);" }, { "docid": "19110820", "title": "", "text": "by the District Court; we review de novo the Bankruptcy Court’s determination of the single issue of law presented here. See Halverson v. Estate of Cameron (In re Mathiason), 16 F.3d 234, 235 (8th Cir.1994). Initially, we note that Hartford asserts no claim against Magna or its collateral outside of the Hen House bankruptcy proceeding. The nature and extent of the potential liability of Magna, as an al lowed secured creditor in that bankruptcy proceeding, is established by the Bankruptcy Code; more particularly, it is established for purposes of this case by § 506(c). Despite arguments made by Hartford asserting its § 506(c) standing to surcharge property securing Magna’s claim based on other provisions of the Bankruptcy Code, the fact is that § 506(c) is the only provision of the Code that directly addresses the issue of standing that is before us. Moreover, § 506(c) is the only provision of the Code that authorizes any party to a bankruptcy proceeding to recover from property securing the claim of an allowed secured creditor such as Magna. It would be extremely odd were Congress to have expanded the potential § 506(c) liability of allowed secured creditors by means of the other Code provisions put forward by Hartford, which in one way or another deal with the assertion of claims against the bankruptcy estate, as distinguished from claims against the property of allowed secured creditors. We do not believe Congress intended to do any such thing and, therefore, we focus on § 506(c). Section 506(c) clearly states, “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(c) (1994) (emphasis added). The proper construction of any statute, the Bankruptcy Code included, begins with the language of the statute itself. See United States v. Ron Pair Enters., Inc., 489 U.S. 285, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (construing Bankruptcy Code § 506(b) according to its plain language); Harmon v. United States, 101 F.3d" }, { "docid": "4005399", "title": "", "text": "as a going concern than it would have realized if the assets of JKJ had been immediately liquidated. At the conclusion of the hearing, the bankruptcy court found that Reynolds was entitled to at least partial payment from Ford Credit for the postpetition goods and services provided to JKJ. After supplemental briefing, the bankruptcy court entered an order permitting Reynolds to surcharge Ford Credit in the amount of $94,846.41. Ford Credit appealed the decision. The district court reversed, finding it unnecessary to decide whether the cost of the goods and services provided by Reynolds was properly chargeable against Ford Credit because Reynolds did not have standing to bring a claim under § 506(c). II. Generally, administrative expenses are paid from the unencumbered assets of a bankruptcy estate rather than from secured collateral. IRS v. Boatmen’s First Nat’l Bank of Kan. City, 5 F.3d 1157, 1159 (8th Cir.1993). Section 506(c) provides an exception to this general rule. Id. Pursuant to § 506(e): The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C.A. § 506(c). The purpose of this provision is to prevent a windfall to a secured creditor at the expense of the estate. Boatmen’s, 5 F.3d at 1159. Thus, § 506(c) allows the trustee to recover administrative expenses from the collateral of a secured creditor to the extent that the expenditures benefit the secured creditor. Reynolds maintains that although § 506(c) purports to apply only to trustees, it should be interpreted as extending standing to administrative claimants in order to prevent windfalls to secured creditors. Reynolds further asserts that it should be allowed to surcharge Ford Credit for the cost of goods and services provided to JKJ because the costs were reasonable, were necessary to the continued operation of JKJ, and benefitted Ford Credit. Ford Credit argues that the plain language of § 506(c) does not grant standing to administrative claimants and that even if administrative claimants have standing to seek recovery" }, { "docid": "23447290", "title": "", "text": "MEMORANDUM OPINION MARTIN V.B. BOSTETTER, Jr., Bankruptcy Judge. The issue to be determined here is whether, and to what extent, administrative expenses of the estate may be charged against a secured creditor’s collateral. In general, only expenses incurred directly to preserve or dispose of the property may be charged against the secured creditor’s collateral. Statutory authority for such charges is found in section 506(c) of the Bankruptcy Code. Particular charges must meet a three-prong test to determine their propriety in that the expenses must be; (1) necessary to preserve or dispose of the property; (2) of benefit to the secured creditor; and (3) reasonable. A broader range of charges may be authorized if the court finds the creditor either expressly or impliedly consented to the incurring of the expenses. STATEMENT OF THE LAW Payment of administrative expenses traditionally has been the responsibility of the debtor’s estate, not its secured creditors. In re Flagstaff Food Service Corporation, 739 F.2d 73 (2d Cir.1984); Matter of Trim-X, Inc., 695 F.2d 296 (7th Cir.1982). A trustee has the option to abandon secured property to the lienholder as having no equity for the estate, but if the trustee elects to retain and sell such property “he cannot intrench upon the amount of the secured debt for the payment of any of the expenses of administration such as commissions and similar costs.” Textile Banking Company v. Widener, 265 F.2d 446, 453 (4th Cir.1959). Some costs, however, may be shared with secured creditors pursuant to section 506(c) of the Bankruptcy Code. Section 506(c) provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C. § 506(c). This section permits costs to be charged against a secured party only “for acts which directly protect or preserve the collateral in a specified and limited sense.” In re Sonoma V, 24 B.R. 600, 603 (Bankr. 9th Cir.1982). Conversely, the section protects the estate and its general creditors from the cost of preserving" }, { "docid": "17722080", "title": "", "text": "here, nor is it necessary given the proper substitution of the trustee. We see no reason to depart from our clearly controlling precedent in JKJ Chevrolet. Loudoun simply has no standing as an administrative creditor to seek to surcharge a secured creditor under § 506(c) for its own benefit. The district court’s order affirming the bankruptcy court’s dismissal of Loudoun is affirmed. IV. The issue of the surcharge of postpetition rent in Ford Credit’s appeal in No. 96-1431 remains. Although Judge Phillips agrees with me that the bankruptcy court’s order in this appeal must be reversed, we are not in complete agreement as to the means to that end. Judge Phillips joins in Part IV. B of this opinion (and in the result), but he does not join in Part IV. A. For the reasons which follow, I believe that the bankruptcy court was incorrect as a matter of law in its holding that § 506(e) does not require an actual expenditure in order for the estate to be reimbursed. A. As we noted in JKJ Chevrolet, 26 F.3d at 483, “[gjenerally, administrative expenses are paid from the unencumbered assets of a bankruptcy estate rather than from secured collateral.” Section 506(c) codifies a common law exception to this general rule. That section states: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C. § 506(c). In JKJ Chevrolet we construed the statute narrowly only to allow “the trustee to recover administrative expenses from the collateral of a secured creditor to the extent that the expenditures benefit the secured creditor.” JKJ Chevrolet, 26 F.3d at 483 (emphasis added). The common law exception permitted a holder of secured collateral to be surcharged only when “a debtor, debtor in possession or trustee had expended funds to preserve or dispose of the very property (collateral) securing the debt.” In re Visual Indus., Inc., 57 F.3d 321, 324 (3d Cir.1995). A variety of expenditures were allowed —" }, { "docid": "20476499", "title": "", "text": "F.3d 1157, 1159 (8th Cir.1993) (“The general rule is that normal administrative expenses of the bankruptcy estate may not be charged against secured collateral but may share in the distribution of the unencumbered assets of the debtor.”) A statutory exception to this general rule is found in 11 U.S.C. § 506(c), which allows a Trustee to recover from property securing an allowed secured claim the “reasonable, necessary costs and expenses of preserving, or disposing of, such property.” Section 506(c) is the statutory basis for preventing a windfall to a secured creditor. In re Foremost Manufacturing Company, 137 F.3d 919, 923 (6th Cir.1998) (Stating that 11 U.S.C. § 506(c) “prevent(s) secured creditors from, say, getting free warehousing for their collateral at the expense of the rest of the estate.”) See also, I.R.S. v. Boatmen’s, 5 F.3d at 1159 (“Section 506(c) ... is equitable in origin, preventing a windfall to a secured creditor at the expense of the trustee or debtor in possession by shifting the costs of preserving or disposing of a secured party’s collateral from the bankruptcy estate to the secured party.”) As stated above, Brown Gibbons is without standing to seek relief pursuant to § 506(c), and this Court is unaware of any other statutory provision that provides an exception to the general rule regarding payment of secured creditors. Brown Gibbons’ assertion that an adverse ruling will create “seriously prejudicial law for all incentive-based transactions going forward” is not a legitimate basis for the relief sought. In fact, “whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code.” Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988). Herein, Brown Gibbons has cited to no Code provision, or other authority, that supports payment of the Transaction Fee train Huntington’s cash collateral. Accordingly, Brown Gibbons’ request to have the Transaction Fee paid from the sale proceeds is not well premised. Accordingly, Brown Gibbons Lang & Company’s Application for Allowance of Compensation and Reimbursement of Expenses Pursuant to §§ 330 and 503(b)(2) is approved" } ]

[ { "docid": "23319738", "title": "", "text": "Inc., 711 F.2d 1164, 1173 (2d Cir.1983) (collecting cases). When called upon “to balance the desirability for confidentiality against the need of the moving party for disclosure,” id., a strong presumption in favor of confidentiality has been established by the courts. See, e.g., id. at 1174 (observing that many courts use a “standard approaching that for the release of grand jury materials” as a benchmark for assessing third-party disclosure requests); see also United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985) (“Generally, pre-sentence reports are considered as confidential reports to the court and are not considered public records, except to the extent that they or portions of them are placed on the court record or authorized for disclosure to serve the interests of justice.”), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986); United States v. Anderson, 724 F.2d 596, 598-99 (7th Cir.1984) (reiterating “ends of justice” standard for third-party requests; observing that secrecy of presentence reports is of “critical importance” and that “[a]ny broader disclosure requirement ... would upset the delicate balance underlying Rule 32(c)(3). Confidentiality of pre-sentence reports is vitally important to the efficacy of the sentencing process.”). In the case now before us, the district court explained that if presentence reports generally are not kept confidential, courts will not receive sufficient information on which to make informed sentencing decisions. The court denied disclosure because it concluded that the confidentiality principle outweighed the need of the estate and the newspaper to see the requested documents. This “free flow of information” rationale is one commonly asserted by courts in support of nondisclosure of presentence reports. E.g., McKnight, 771 F.2d at 390; Anderson, 724 F.2d at 598 (citing United States v. Greathouse, 484 F.2d 805, 807 (7th Cir.1973), which concluded that confidentiality is necessary to protect the “sentencing court’s ability to obtain data on a confidential basis from the accused and from sources other than the accused for use in the sentencing process”); Charmer, 711 F.2d at 1171. Without confidentiality, so the argument runs, courts will not receive “as complete a set of facts as is" } ]

[ { "docid": "15184193", "title": "", "text": "objections thereto. We consider first the matter of the presentence report and then discuss Huckaby’s other issues. DISCUSSION Although Fed.R.Crim.Pro. 32(c) requires the preparation of a presentenee investigation report in most criminal cases, the rule does not expressly prohibit disclosure of the report after sentencing. Nevertheless, the rule continues a longstanding practice of treating presentenee investigation reports as confidential and not public documents. It prohibits disclosure of the PSIR even to the defendant or his counsel when, in the opinion of the court The report contains diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. Rule 32(c)(3). Notwithstanding the rule’s silence, “in both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals. United States Dept. of Justice v. Julian, 486 U.S. 1, 12, 108 S.Ct. 1606, 1613, 100 L.Ed.2d 1 (1988) (emphasis in original). There is a “general presumption that courts will not grant third parties access to the presentence reports of other individuals.” United States v. Smith, 13 F.3d 860, 867 (5th Cir.1994), cert. denied, — U.S. -, 114 S.Ct. 2151, 128 L.Ed.2d 877 (1994). The ordinary confidentiality of presentence reports is supported by powerful policy considerations. These may be summarized briefly, for they have been discussed at length in other opinions. See, e.g., Julian, supra; United States v. Corbitt, 879 F.2d 224, 230-35 (7th Cir.1989); United States v. Schlette, 842 F.2d 1574 (9th Cir.1988), opinion amended, 854 F.2d 359 (9th Cir.1988); Burns v. Bureau of Prisons, 804 F.2d 701, 704-05 (D.C.Cir.1986). First, the defendant has a privacy interest in the presentence report because it reveals not only details of the offense but, in the broadest terms, “any other information that may aid the court in sentencing ...” A PSIR routinely describes the defendant’s health, family ties, education, financial status, mental and emotional condition, prior criminal history and" }, { "docid": "6683917", "title": "", "text": "of the parties during the presenlence investigation process. More generally, the parties opposing access point to case law that has held that PSRs are not subject to any public right of access, unless the party seeking access can demonstrate an interest in disclosure that outweighs the interest in the confidentiality of the report. See United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989); United States v. Schlette, 842 F.2d 1574, 1579 (9th Cir. 1988); United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985); United States v. Santarelli, 729 F.2d 1388, 1390 (11th Cir.1984); United States v. Charmer Indus., 711 F.2d 1164, 1176 (2d Cir. 1983). Even though Rule 32 itself does not deal with disclosure of the report to third parties, a number of courts have reasoned that, in addition to the fact that PSRs have traditionally been confidential and only made available to the defendant in recent decades, \"public disclosure ... of the presentence report ... would constitute a positive hindrance” of the sentencing process and ongoing criminal investigations. Corbitt, 879 F.2d at 229. We ourselves have observed that \"[tjhere is a general presumption that the courts will not grant third parties access to the presentence reports of other individuals.” United States v. Blanco, 884 F.2d 1577, 1578 (3d Cir.1989). Based on this case law, the parties opposing access contend that the newspapers do not have a presumptive right of access to the sentencing memorandum, or to the briefs or hearing, which might disclose the information contained in the PSR. As they point out, sentencing mem-oranda typically include the same classes of sensitive information as are included in presen-tence reports, such as criminal history and characteristics, and not infrequently, as in this case, allegations of criminal conduct against uncharged individuals. There is considerable force to this argument. There are, of course, countervailing considerations. In the wake of the revolution in criminal sentencing spawned by the Sentencing Reform Act, 18 U.S.C. § 3551 et seq., and the U.S. Sentencing Guidelines, which have largely transformed sentencing into an adversary proceeding during which the sentencing judge makes record fact findings" }, { "docid": "23489972", "title": "", "text": "In re Continental Ill. Sec. Litig., 732 F.2d 1302, 1308-09 (7th Cir.1984). However, the press’ right of access to documents submitted for use in a hearing must be considered separately from the press’ right to attend the hearing itself. United States v. Dorfman, 690 F.2d at 1234; see also United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir.1985) (considering press’ right to inspect criminal indictment separately from acknowledged right . to attend trial). Whether or not the public and the press have a first amendment right of access to sentencing hearings, we must determine independently whether there is a right to disclosure of presentence reports submitted at such hearings. See United States v. Santarelli, 729 F.2d 1388, 1390-91 (11th Cir.1984) (distinguishing between presumptive openness of sentencing hearings, and general confidentiality of presentence reports and hearings at which defendant challenges report’s contents). It is clear that presentence reports have traditionally been confidential — indeed, it is only in the past 25 years that the defendant has had access to the presentence report, either as a discretionary matter or as of right. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (no denial of due process where sentencing judge: considered presentence report which was not disclosed to defendant); infra at 236 (discussing amendments to Fed.R.Crim.P. 32(c) to insure defendant a meaningful opportunity to inspect and controvert contents of presen-tence report). The right of access of an individual directly affected by the document, the defendant, does not establish that the document has historically been “open to the public.” United States v. Dorfman, 690 F.2d at 1234. Further, as we discuss below in some detail, public disclosure of the contents of the presentence report would not promote the effective functioning of the probation office, or, by extension, the sentencing court; rather, disclosure would constitute a positive hindrance to the probation office’s performance of its obligation to provide the sentencing court with a comprehensive analysis of the defendant’s character. For these reasons, we do not believe that a first amendment right of access attaches to pre-sentence reports. III." }, { "docid": "22359578", "title": "", "text": "10 (1966) (the purpose of Exemption 5 is to ensure that “any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public”). Accordingly, “[t]he test under Exemption 5 is whether the documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” Grolier, supra, at 26. Both parties agree that in both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals. See, e. g., United States v. McKnight, 771 F. 2d 388, 390 (CA8 1985); United States v. Anderson, 724 F. 2d 596, 598 (CA7 1984); United States v. Charmer Industries, Inc., 711 F. 2d 1164, 1173-1176 (CA2 1983); Hancock Brothers, Inc. v. Jones, 293 F. Supp. 1229 (ND Cal. 1968). As the Government points out, one reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. See, e. g., United States v. Martinello, 556 F. 2d 1215, 1216 (CA5 1977). A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report. See, e. g., Charmer, supra, at 1174-1176 (following Hancock Brothers, Inc. v. Jones, supra, in concluding that a report may not be disclosed “in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice”). There is no indication, however, that similar restrictions on discovery of presentence investigation reports have been recognized by the courts when the individual requesting discovery is the subject of the report. Indeed, there seem to be no reported judicial decisions on the subject. By itself, of course, the fact that there are no cases directly on point with respect to this particular category of requests" }, { "docid": "15184195", "title": "", "text": "uncharged crimes. That the defendant has pled guilty or been convicted of a crime does not require the dissemination of his entire personal background in the public domain. And despite the care with which they are prepared, PSIR’s do not conform to the rules of evidence and may contain errors. Rule 32 affords a defendant an opportunity to object to errors and requires the court to resolve any factual disputes over its accuracy, but the PSIR is not usually rewritten to remove misinformation. Hence, misunderstandings about a defendant could easily arise from the routine publication of PSIR’s. Second, as a repository of investigatory evidence about the defendant’s involvement in criminal activity, the PSIR often relies upon confidential informants or sources of information and may include facts obtained from proceedings before the grand jury, which are otherwise secret. Were the confidentiality of presentence reports to be freely or regularly breached, the government’s access to information needed for criminal investigation would be severely compromised. Third, relevant to the sentencing process alone, the court depends heavily upon the PSIR to fulfill the mandate of the Sentencing Guidelines and impose a just sentence. Disclosure of such reports to the public may stifle or discourage that vital transmission of information by the defendants, whose contribution to a PSIR is significant, and by cooperating third parties. While the reports themselves have historically been treated as confidential, however, the sentencing hearings in which their contents may be disclosed are not. For this reason, it is difficult to conceive that confidentiality of the information in a PSIR must be maintained under all circumstances, and no court has so held. Instead, a standard similar to that which regulates the disclosure of grand jury proceedings has evolved. As the Seventh Circuit stated in Corbitt, only where a “compelling, particularized need for disclosure is shown should the district court disclose the report; even then, however, the court should limit disclosure to those portions of the report which are directly relevant to the demonstrated need.” 879 F.2d at 239. See also, United States v. Charmer Industries, Inc., 711 F.2d 1164, 1175 (2d" }, { "docid": "23319736", "title": "", "text": "to challenge the factual accuracy of the report. See Fennell & Hall, supra, 93 Harv.L.Rev. at 1640-49. The conclusions of the empirical study led to the 1983 revision of Rule 32(c)(3)(A), which requires mandatory disclosure of the report to the defendant and his counsel, regardless of the defendant’s failure to request the report. See Fed.R.Crim.P. 32 advisory committee notes to 1983 amendment. The sentencing court now has an affirmative duty to ensure that the defendant and his counsel have read the report and discussed it before sentencing. Fed.R.Crim.P. 32(a)(1)(A). And under 18 U.S.C. § 3552, adopted as part of the Sentencing Reform Act of 1984, Pub.L. No. 98-473, tit. II, c. II, § 212, 98 Stat. 1837, 1987, the presentence report must be disclosed to the defendant, his counsel, and the attorney for the government, at least ten days before sentencing, unless the defendant waives the minimum period. 2. Disclosure to Third Parties Rule 32(c)(3)(A) does not address release of the report to third parties. Julian v. United States Dep’t of Justice, 806 F.2d 1411, 1418-19 (9th Cir.1986), cert. granted, — U.S. —, 107 S.Ct. 3209, 96 L.Ed.2d 695 (1987); accord United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986); United States v. Anderson, 724 F.2d 596, 597 (7th Cir.1984); United States v. Charmer Indus., Inc., 711 F.2d 1164, 1173 (2d Cir.1983); United States v. Figurski, 545 F.2d 389, 391 (4th Cir.1976). Because the rule says nothing about third-party disclosure, “most district courts rely on custom and case law in responding to third-party requests.” Fennell & Hall, supra, 93 Harv.L.Rev. at 1684. In general, most courts explain that disclosure to a third party is appropriate if disclosure “is necessary to serve the ends of justice.” Berry v. Department of Justice, 733 F.2d 1343, 1352 (9th Cir.1984) (collecting cases). But because most courts also consider pre-sentence reports confidential, there are no reported cases in which disclosure of the report to a third party has been found necessary to serve the ends of justice. United States v. Charmer Indus.," }, { "docid": "6683915", "title": "", "text": "contemnor, not by the public. The contemnor must request open proceedings. Moreover, there is no requirement that the entire proceeding, including the questions that the contemnor refused to answer, be made public. All that must be accessible to the public, upon the contemnor’s request, is the \"final stage” of contempt proceedings. Levine v. United States, 362 U.S. 610, 618, 80 S.Ct. 1038, 1043-44, 4 L.Ed.2d 989 (1960). . The commentary provides two additional examples of hearings \"at which information about a particular grand jury proceeding might need to be discussed”: \"those at which the question is whether to grant a grand jury witness immunity or whether to order a grand jury witness to comply fully with the terms of a subpoena directed to him.” . Because we conclude that the district court did not err in sealing the briefs and the hearing, we need not reach the question whether Fed. R.Crim.P. 32, which governs the preparation of presentence investigation reports (PSR), would have permitted the district court to do the same. The district court, in sealing the briefs and hearing, relied almost entirely on Rule 6(e). Although most of the arguments with respect to Rule 32 made by the parties opposing access have to do with the question whether the district court properly sealed the sentencing memorandum, which we have held is moot, whether information contained in a government sentencing memorandum is confidential is still a live issue to the extent that the briefs and the hearing might reveal some of that information. The parties opposing access to the briefs and hearing make a number of Rule 32 based arguments in support of the district court's decision to seal the briefs and the hearing. First, they contend that the sentencing memorandum (and by extension, the briefs and the hearing) disclosed (or will disclose) certain sensitive information that Rule 32(b)(5) requires probation officers to exclude from the PSRs. Second, they submit that the sentencing memorandum (and again by extension, the briefs and ultimately the hearing) disclosed (or will disclose) presentence investigation material in violation of Rule 32(b)(6), which governs the obligations" }, { "docid": "21846098", "title": "", "text": "denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 388 (1981); United States v. Resnick, 483 F.2d 354, 358-59 (5th Cir.) (declining to review legality of a sentence before trial court had been presented with a Rule 35 motion) cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973). Thus, we choose to review this sentence. During the sentencing hearing, the district court read into the record the net worth of each defendant. The defendants argue that such an action is impermissible. We disagree. The circumstances under which presentence investigation reports are to be made, their content, and the circumstances under which they may be disclosed, are governed by Rule 32 of the Federal Rules of Criminal Procedure. The Rule is silent regarding the disclosure of such reports to third persons. United States v. Charmer, 711 F.2d 1164, 1173 (2d Cir.1983); United States v. Figurski, 545 F.2d 389, 391 (4th Cir.1976); see also Fed.R.Crim.P. 32. In order to ensure the free flow of information so that a district court has as complete a set of facts as is possible for fashioning an appropriate sentence, Charmer, 711 F.2d at 1170, 1176; United States v. Dingle, 546 F.2d 1378, 1381 (10th Cir.1976); United States v. Greathouse, 484 F.2d 805, 807 (7th Cir.1973); United States v. Evans, 454 F.2d 813, 820 (8th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2423, 32 L.Ed.2d 668 (1972), courts have held that presentence reports are not public and should not be disclosed to third persons absent a demonstration that disclosure is required to meet the ends of justice. Charmer, 711 F.2d at 1176; Figurski, 545 F.2d at 391 (quoting Hancock Bros., Inc. v. Jones, 293 F.Supp. 1229, 1233 (N.D.Cal.1968)). The American Bar Association also recommends that presentence reports be maintained as confidential documents, limiting their disclosure, as to third parties, to persons or agencies dealing with defendant’s rehabilitation. A.B.A. Sentencing Alternatives and Procedures § 18 (1979). However, we are not presented with the disclosure of a presentence report to a third person. Rather, we are confronted with the propriety of disclosing facts contained in" }, { "docid": "23319737", "title": "", "text": "1418-19 (9th Cir.1986), cert. granted, — U.S. —, 107 S.Ct. 3209, 96 L.Ed.2d 695 (1987); accord United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986); United States v. Anderson, 724 F.2d 596, 597 (7th Cir.1984); United States v. Charmer Indus., Inc., 711 F.2d 1164, 1173 (2d Cir.1983); United States v. Figurski, 545 F.2d 389, 391 (4th Cir.1976). Because the rule says nothing about third-party disclosure, “most district courts rely on custom and case law in responding to third-party requests.” Fennell & Hall, supra, 93 Harv.L.Rev. at 1684. In general, most courts explain that disclosure to a third party is appropriate if disclosure “is necessary to serve the ends of justice.” Berry v. Department of Justice, 733 F.2d 1343, 1352 (9th Cir.1984) (collecting cases). But because most courts also consider pre-sentence reports confidential, there are no reported cases in which disclosure of the report to a third party has been found necessary to serve the ends of justice. United States v. Charmer Indus., Inc., 711 F.2d 1164, 1173 (2d Cir.1983) (collecting cases). When called upon “to balance the desirability for confidentiality against the need of the moving party for disclosure,” id., a strong presumption in favor of confidentiality has been established by the courts. See, e.g., id. at 1174 (observing that many courts use a “standard approaching that for the release of grand jury materials” as a benchmark for assessing third-party disclosure requests); see also United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985) (“Generally, pre-sentence reports are considered as confidential reports to the court and are not considered public records, except to the extent that they or portions of them are placed on the court record or authorized for disclosure to serve the interests of justice.”), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986); United States v. Anderson, 724 F.2d 596, 598-99 (7th Cir.1984) (reiterating “ends of justice” standard for third-party requests; observing that secrecy of presentence reports is of “critical importance” and that “[a]ny broader disclosure requirement ... would upset the" }, { "docid": "23207395", "title": "", "text": "Circuit has taken a broad view of the ends of justice stating that when a witness whose PSR is sought to be disclosed is a co-defendant, a proper concern for the rights of the defendant requires in some cases that confidentiality of that co-defendant’s PSR be breached “because the testimony of such witness may be shaded to curry favorable treatment rather than being premised upon an overriding concern for the truth.” United States v. Figurski, 545 F.2d 389, 391 (4th Cir.1976). Be that as it may, we nonetheless think that, under our precedents, no in camera review of a co-defendant’s PSR is required without a threshold showing of a good faith belief that a co-defendant’s PSR contains exculpatory evidence not available elsewhere. Cf. United States v. Zolin, 491 U.S. 554, 571, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (party asserting crime-fraud exception to attorney-client privilege must make threshold showing to trigger in camera review). In the case at hand, appellant has made no showing of how the presentence reports of non-witnesses are essential to ensure the fairness of his hearing or the reliability of the facts presented to the court. Instead, Molina’s abstract arguments that the reports might affect how he cross-examined Cireno, or may have caused him to present testimony through one or both remaining co-defendants fall well short of the particularity required to demonstrate a compelling need. See Charmer, 711 F.2d at 1174; United States v. Corbitt, 879 F.2d 224, 239 (7th Cir.1989). Further, key to the showing of a third person seeking disclosure is whether the information in the presentence report is obtainable from other sources. See Charmer, 711 F.2d at 1177. Appellant had the opportunity to call his co-defendants as witnesses at the hearing and chose not to do so. Accessing their presentence reports should not serve as a substitute for other available means of obtaining the information they contain. Having so concluded, we add that in the interests of justice, and since we are conducting de novo review of this issue, we obtained and examined the presentence reports, held under seal, of all three co-defendants," }, { "docid": "6299746", "title": "", "text": "Coxton, 598 F.Supp.2d 737, 739-40 (W.D.N.C.2009) (citation omitted) (same). In this case, however, the Silers do not seek access in order to participate in the trial proceedings — the criminal proceedings in this case are long over. As the Fourth Circuit stated, “The rights codified by the CVRA ... are limited to the criminal justice process; the Act is ... silent and unconcerned with victims’ rights to file civil claims against their assailants.” Moussaoui, 483 F.3d at 234-35. Hence, the Silers’ requests are clearly outside the scope of the CVRA. Second, the common law right of access to court records does not cover the defendants’ PSRs. The scope of any such common law right is left to the “sound discretion of the trial court.” See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). In practice, PSRs are not treated as public records within the judicial system, but are handled and marked as “confidential reports.” United States v. Martinello, 556 F.2d 1215, 1216 (5th Cir.1977); see also United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985). Fed. R.Crim.P. 32(e)(2) authorizes the release of a PSR to the defendant, the defendant’s attorney, the government’s attorney, and the court, implying that those are the only parties with access, and courts have accordingly declined to extend access beyond these limits. See Julian, 486 U.S. at 12, 108 S.Ct. 1606. Contrary to the Silers’ contentions, courts have given reasons why PSRs are not subject to a common law presumption of court openness. For instance, the Supreme Court in Julian noted that disclosure would have “a chilling effect on the willingness of various individuals to contribute information” and recognized “the need to protect the confidentiality of the information contained in the report.” 486 U.S. at 12, 108 S.Ct. 1606; see also United States v. Huckaby, 43 F.3d 135, 138 (5th Cir.1995); United States v. Corbitt, 879 F.2d 224, 232 (7th Cir.1989); United States v. Greathouse, 484 F.2d 805, 807 (7th Cir.1973). Because PSRs are not public documents, the district court’s local rules in this case do not" }, { "docid": "6683916", "title": "", "text": "sealing the briefs and hearing, relied almost entirely on Rule 6(e). Although most of the arguments with respect to Rule 32 made by the parties opposing access have to do with the question whether the district court properly sealed the sentencing memorandum, which we have held is moot, whether information contained in a government sentencing memorandum is confidential is still a live issue to the extent that the briefs and the hearing might reveal some of that information. The parties opposing access to the briefs and hearing make a number of Rule 32 based arguments in support of the district court's decision to seal the briefs and the hearing. First, they contend that the sentencing memorandum (and by extension, the briefs and the hearing) disclosed (or will disclose) certain sensitive information that Rule 32(b)(5) requires probation officers to exclude from the PSRs. Second, they submit that the sentencing memorandum (and again by extension, the briefs and ultimately the hearing) disclosed (or will disclose) presentence investigation material in violation of Rule 32(b)(6), which governs the obligations of the parties during the presenlence investigation process. More generally, the parties opposing access point to case law that has held that PSRs are not subject to any public right of access, unless the party seeking access can demonstrate an interest in disclosure that outweighs the interest in the confidentiality of the report. See United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989); United States v. Schlette, 842 F.2d 1574, 1579 (9th Cir. 1988); United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985); United States v. Santarelli, 729 F.2d 1388, 1390 (11th Cir.1984); United States v. Charmer Indus., 711 F.2d 1164, 1176 (2d Cir. 1983). Even though Rule 32 itself does not deal with disclosure of the report to third parties, a number of courts have reasoned that, in addition to the fact that PSRs have traditionally been confidential and only made available to the defendant in recent decades, \"public disclosure ... of the presentence report ... would constitute a positive hindrance” of the sentencing process and ongoing criminal investigations. Corbitt, 879 F.2d" }, { "docid": "1401189", "title": "", "text": "The Court has not been informed as to whether the report was transferred to the U.S. Attorney’s civil division, nor whether the attorneys representing Defendants in this case have read the report. Discussion Federal probation officers are charged with the duty of conducting presentence investigations in criminal cases and preparing a report to be submitted to the sentencing judge. Fed.R.Crim.P. 32; 18 U.S.C. § 3552. There is no statutory provision or court rule prohibiting disclosure of such reports to third persons. United States v. Figurski, 545 F.2d 389, 391 (4th Cir.1976); United States v. Charmer Indus., Inc., 711 F.2d 1164 (2d Cir.1983). However, it has been almost universally held that, because these reports are prepared exclusively at the direction and for the benefit of the court in a criminal case, as an aid in arriving at the proper sentence, “[i]t is essential that the confidentiality of such a report be protected to insure the free flow of information.” United States v. Dingle, 546 F.2d 1378, 1381 (10th Cir.1976). Both the entire thrust of Rule 32(c) and our local Criminal Rule 2.07, and the policies they both serve, make plain the need for such confidentiality. We judges would break faith with defendants, whom we uniformly urge to cooperate with and make full disclosure to the Probation Office to assist us in our sentencing decisions, if we opened the reports up to public scrutiny. Board of Education v. Admiral Heating and Ventilation, Inc., 513 F.Supp. 600, 605 (N.D.Ill.1981). “The history of Rule 32(c) reflects a longstanding judicial view that confidentiality should be maintained.” United States v. Charmer, supra, at 1173. In United States v. Corbitt, 879 F.2d 224, 229 (7th Cir.1989) the Seventh Circuit noted, “It is clear that presentence reports have traditionally been confidential — indeed, it is only in the past 25 years that the defendant has had access to the presentence report, either as a discretionary matter or as of right.” The Corbitt court examined the presumption of confidentiality in some detail, and listed a number of factors justifying the secrecy of presentence reports, including privacy interests of the" }, { "docid": "23489971", "title": "", "text": "Right of Access to Criminal Proceedings The first amendment right of access to judicial proceedings provides no broader right to disclosure of the presentence report. The Supreme Court has conducted a two-pronged inquiry in order to determine whether any particular stage of a criminal proceeding should be open to the public: first, the Court has considered “whether the place and process have historically been open to the press and general public,” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 (1986); second, the Court has asked “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. We believe that Pulitzer’s assertion of a right to inspect Corbitt’s presentence report fails to satisfy either prong of this “experience and logic” test. As a preliminary matter, we note that this court has held that the first amendment right of access extends to documents submitted in connection with a judicial proceeding. See, e.g., United States v. Peters, 754 F.2d 753, 763 (7th Cir.1985); In re Continental Ill. Sec. Litig., 732 F.2d 1302, 1308-09 (7th Cir.1984). However, the press’ right of access to documents submitted for use in a hearing must be considered separately from the press’ right to attend the hearing itself. United States v. Dorfman, 690 F.2d at 1234; see also United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir.1985) (considering press’ right to inspect criminal indictment separately from acknowledged right . to attend trial). Whether or not the public and the press have a first amendment right of access to sentencing hearings, we must determine independently whether there is a right to disclosure of presentence reports submitted at such hearings. See United States v. Santarelli, 729 F.2d 1388, 1390-91 (11th Cir.1984) (distinguishing between presumptive openness of sentencing hearings, and general confidentiality of presentence reports and hearings at which defendant challenges report’s contents). It is clear that presentence reports have traditionally been confidential — indeed, it is only in the past 25 years that the defendant has had access to the presentence report, either as a" }, { "docid": "6299747", "title": "", "text": "States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985). Fed. R.Crim.P. 32(e)(2) authorizes the release of a PSR to the defendant, the defendant’s attorney, the government’s attorney, and the court, implying that those are the only parties with access, and courts have accordingly declined to extend access beyond these limits. See Julian, 486 U.S. at 12, 108 S.Ct. 1606. Contrary to the Silers’ contentions, courts have given reasons why PSRs are not subject to a common law presumption of court openness. For instance, the Supreme Court in Julian noted that disclosure would have “a chilling effect on the willingness of various individuals to contribute information” and recognized “the need to protect the confidentiality of the information contained in the report.” 486 U.S. at 12, 108 S.Ct. 1606; see also United States v. Huckaby, 43 F.3d 135, 138 (5th Cir.1995); United States v. Corbitt, 879 F.2d 224, 232 (7th Cir.1989); United States v. Greathouse, 484 F.2d 805, 807 (7th Cir.1973). Because PSRs are not public documents, the district court’s local rules in this case do not provide for access to the defendants’ PSRs. The Eastern District of Tennessee’s Local Rule 26.2 provides that all papers filed with the court become part of the record unless stated otherwise by “statute, rule or order.” The PSRs in this case were never filed with the court, and so Local Rule 26.2 by its terms does not apply to them. Because the Rule does not sweep the PSRs into its purview, its procedures for the sealing and unsealing of public documents are inapplicable. Moreover, the district court did not abuse its discretion in finding that there was not the required “special need” for the release of these nonpublic documents. Julian, 486 U.S. at 12, 108 S.Ct. 1606. The district court found that the Silers needed the PSRs only because they failed adequately to complete discovery in their civil litigation. United States v. Green, No. 3:05-CR-00011, slip op. at 3 (E.D.Tenn. Jan. 30, 2008). However, when “virtually everything in the presentence report [was] available from other sources,” id. (citing Beller v. United States, 221 F.R.D. 674," }, { "docid": "1401190", "title": "", "text": "and our local Criminal Rule 2.07, and the policies they both serve, make plain the need for such confidentiality. We judges would break faith with defendants, whom we uniformly urge to cooperate with and make full disclosure to the Probation Office to assist us in our sentencing decisions, if we opened the reports up to public scrutiny. Board of Education v. Admiral Heating and Ventilation, Inc., 513 F.Supp. 600, 605 (N.D.Ill.1981). “The history of Rule 32(c) reflects a longstanding judicial view that confidentiality should be maintained.” United States v. Charmer, supra, at 1173. In United States v. Corbitt, 879 F.2d 224, 229 (7th Cir.1989) the Seventh Circuit noted, “It is clear that presentence reports have traditionally been confidential — indeed, it is only in the past 25 years that the defendant has had access to the presentence report, either as a discretionary matter or as of right.” The Corbitt court examined the presumption of confidentiality in some detail, and listed a number of factors justifying the secrecy of presentence reports, including privacy interests of the defendant, the defendant’s family, the victim, and others; the “substantial interest” of the sentencing court in obtaining all information relevant to the sentencing decision, and the probability that disclosure of the report would tend to discourage the defendant and other sources from communicating information freely, thus reducing the information available to the sentencing court and adversely effecting future presentence investigations; and the government’s interest in maintaining confi dentiality of the identity of informants and of grand jury proceedings. Id., at 229-235. Both parties agree that in both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals ... As the Government points out, one reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report ... A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have" }, { "docid": "6683918", "title": "", "text": "at 229. We ourselves have observed that \"[tjhere is a general presumption that the courts will not grant third parties access to the presentence reports of other individuals.” United States v. Blanco, 884 F.2d 1577, 1578 (3d Cir.1989). Based on this case law, the parties opposing access contend that the newspapers do not have a presumptive right of access to the sentencing memorandum, or to the briefs or hearing, which might disclose the information contained in the PSR. As they point out, sentencing mem-oranda typically include the same classes of sensitive information as are included in presen-tence reports, such as criminal history and characteristics, and not infrequently, as in this case, allegations of criminal conduct against uncharged individuals. There is considerable force to this argument. There are, of course, countervailing considerations. In the wake of the revolution in criminal sentencing spawned by the Sentencing Reform Act, 18 U.S.C. § 3551 et seq., and the U.S. Sentencing Guidelines, which have largely transformed sentencing into an adversary proceeding during which the sentencing judge makes record fact findings about the material sentencing factors, it would seem that significant portions of the PSR need (and should) no longer be confidential. But even if that were so, the matters at issue here may well be outside the ambit of any such precept (assuming it should be adopted). We leave this question to the district court. If the court determines, upon resolving the 6(e) question, that all, or aspects, of the briefs and the transcripts of the hearing should be disclosed to the public, it should also consider whether Rule 32 or related case law establishing the confidentiality of PSRs would prohibit the disclosure of that material. . The cases relied on by the newspapers on this point are inapposite. First, they cite us to In re Charlotte Observer, 882 F.2d 850 (4th Cir.1989) (\"Charlotte Observer I”), in which the Fourth Circuit reversed an order of the district court sealing proceedings relating to a change of venue motion in a well-publicized criminal case. The district court concluded that closure was necessary in order to prevent \"republication”" }, { "docid": "5016004", "title": "", "text": "was not adequately covered in the report. Such proceedings — that is, proceedings whose purpose is to examine the soundness and sufficiency of the presentence report prior to sentencing — may be entitled to a presumption of confidentiality at the discretion of the court. See United States v. Santarelli, 729 F.2d 1388, 1390-91 (11th Cir.1984) (distinguishing between presumptive openness of sentencing hearings and presumptive confidentiality of presentence reports and hearings at which report’s contents are challenged); cf. Corbitt, 879 F.2d at 229 (press’ right to attend hearing does not necessarily entail right of access to documents submitted for use in hearing). Otherwise, parties could simply circumvent the rule of a presentence report’s confidentiality by paraphrasing its contents in a document filed on the open docket, thereby rendering the rule a nullity, and making a mockery of it. Because the in-chambers conference and the in camera proffer are fundamentally interconnected with the presentence report, the court concludes that they are covered by the report’s presumption of confidentiality. C. Compelling Need And The Ends Of Justice This determination does not end the court’s inquiry, however, for a presentence report’s presumption of confidentiality is not absolute. A third-party seeking access to a presentence report may overcome the report’s confidentiality by demonstrating that disclosure will “serve the ends of justice,” Schlette, 842 F.2d at 1579; McKnight, 771 F.2d at 390, or by establishing a “compelling, particularized need for disclosure,” Huckaby, 43 F.3d at 138; Corbitt, 879 F.2d at 239. Applying this standard requires a fact specific inquiry in which the need for confidentiality is balanced against the desirability of releasing a presentenee report. Huckaby, 43 F.3d at 139; Schlette, 842 F.2d at 1579, 1583; Charmer, 711 F.2d at 1173. The showing required of the party seeking disclosure will vary with the degree to which the need for confidentiality is present in a particular case. Schlette, 842 F.2d at 1583 (citing United States Indus., Inc. v. United States Dist. Court, 345 F.2d 18, 21 (9th Cir.), cert. denied, 382 U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62 (1965)). This determination is committed to the sound" }, { "docid": "15184196", "title": "", "text": "PSIR to fulfill the mandate of the Sentencing Guidelines and impose a just sentence. Disclosure of such reports to the public may stifle or discourage that vital transmission of information by the defendants, whose contribution to a PSIR is significant, and by cooperating third parties. While the reports themselves have historically been treated as confidential, however, the sentencing hearings in which their contents may be disclosed are not. For this reason, it is difficult to conceive that confidentiality of the information in a PSIR must be maintained under all circumstances, and no court has so held. Instead, a standard similar to that which regulates the disclosure of grand jury proceedings has evolved. As the Seventh Circuit stated in Corbitt, only where a “compelling, particularized need for disclosure is shown should the district court disclose the report; even then, however, the court should limit disclosure to those portions of the report which are directly relevant to the demonstrated need.” 879 F.2d at 239. See also, United States v. Charmer Industries, Inc., 711 F.2d 1164, 1175 (2d Cir.1983). The district court here explicitly relied on Corbitt and Schlette in deciding that the interests of justice compelled disclosure of Huekaby’s presentence report. His decision is reviewed for an abuse of discretion. Schlette, 842 F.2d at 1566-77; Charmer Industries, 711 F.2d at 1177. Huckaby contends that disclosure of the report on his offense “served only the purpose of providing justification to the public for the imposed sentence.” He criticizes the court for failing to redact irrelevant portions of the report prior to disclosure, he complains that the report contained extensive information about extrinsic offenses, and he alleges prejudice if the report is publicized. What Huckaby does not assert, however, is as important as the complaints he is making. He does not say to this court that any facts stated in the PSIR are incorrect. In the trial court, he objected to a number of statements in the report, causing the probation officer to make some corrections. His remaining factual contentions about the extrinsic offense evidence have been abandoned on appeal. His consistent failure to" }, { "docid": "5016001", "title": "", "text": "memorandum which explained that the documents at issue are fundamentally interconnected with the presentence report, which is a confidential document, and as such they are also confidential. In support of disclosure, PG Publishing argues that: (1) the section of the presentence report pertinent to this ease, which addresses offense conduct, is not entitled to a presumption of confidentiality; and (2) -even if the entire report is confidential, that confidentiality should not be extend to the October 16 conference and the United States’ November 6 proffer. A. Confidentiality Of Presentence Reports It is established beyond reasonable argument that presentence reports, in their entirety, are confidential documents and that there is a strong presumption against disclosing such reports to third-parties. See United States Dept. of Justice v. Julian, 486 U.S. 1, 12, 108 S.Ct. 1606, 1613, 100 L.Ed.2d 1 (1987) (“[C]ourts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals.”) (emphasis in original) (citing United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985); United States v. Anderson, 724 F.2d 596, 598 (7th Cir.1984); United States v. Charmer Industries, Inc., 711 F.2d 1164, 1173-76 (2d Cir.1983)); United States v. Cianscewski, 894 F.2d 74, 79 n. 17 (3d Cir.1990) (“The presentence report has always been considered a confidential document.”); United States v. Huckaby, 43 F.3d 135, 137-38 (5th Cir.1995); United States v. Corbitt, 879 F.2d 224, 229 (7th Cir.1989); United States v. Schlette, 842 F.2d 1574, 1578-79 (9th Cir.1988); United States v. Figursky 545 F.2d 389, 391 (4th Cir.1976). The court’s research has disclosed no cases holding otherwise. In view of the breadth and unanimity of the forgoing authority, the court summarily rejects PG Publishing’s contention that the offense conduct section of the presentence report is not confidential. B. Confidentiality Of In-Chambers Conference And In Camera Proffer The court must now decide whether the in-chambers conference and the United States’ in camera proffer fall within the scope of the presentence report’s confidentiality. PG Publishing argues that to answer this question in the affirmative “would improperly extend and apply the rule of" } ]

[ { "docid": "22095096", "title": "", "text": "parties. The teaching of those cases is that when executive privilege is asserted, the court must balance the public interest in the confidentiality of governmental information against the needs of a litigant to obtain data, not otherwise available to him, with which to pursue a non-frivolous cause of action. Needless to say, the balancing task will often be difficult and the ingredients of the test will vary from case to case. In the context of discovery of police investigation files in a civil rights case, however, at least the following considerations should be examined: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case. We turn to application of these criteria to the motion before us. First, we do not believe that rare instances of disclosure pursuant to a court order made after application of a balancing test comprising detailed standards such as those enumerated here would deter citizens from revealing information to the police. Neither do we perceive any impact of the disclosure of factual statements surrounding an investigation of a shooting upon persons who gave them. Police officers are of course willing to cooperate, and we believe that the average citizen is also willing to cooperate with law enforcement officials. Dis closure under the circumstances of this case would not" } ]

[ { "docid": "1714977", "title": "", "text": "the [appellants’] need ... for access to the privileged information.” In re Sealed Case, 856 F.2d at 272. To achieve this end, a number of factors must be considered, including: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiffs case. Id. (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973), cited in Friedman, 738 F.2d at 1342-43). In other words, a party’s “need” for subpoenaed documents is determined by weighing numerous factors. In this case, however, the trial court found that appellants had shown no “need” for disclosure solely because they failed to demonstrate that they were unable to elicit the disputed information through discovery. This one factor simply cannot be determinative. Need in the context of the law enforcement investigatory privilege is meant to be an elastic concept that does not turn only on the availability of the information from an alternative source. There are two problems with the District Court’s analysis. First, it appears that the District Court may have misunderstood the nature of appellants’ particular need for the documents in light of its assumptions about previous information provided to appellants and the effectiveness of alternative sources of information. The District Court opinion states that appellants “have not shown that they are unable to elicit the information through discovery.” Tuite, Misc. No.94-" }, { "docid": "10692915", "title": "", "text": "balance “the government’s interest in confidentiality against the litigant’s need for the documents.” Coughlin, 946 F.2d at 1160. The court, therefore, should consider the Frankenhauser factors. See Franken-hauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa. Mar.13, 1973) (unpublished) (developing the factors). The oft-cited Frankenhauser test consists of weighing the following ten factors: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiffs case. See Tuite v. Henry, 98 F.3d 1411, 1417 (D.C.Cir.1996) (utilizing the Frankenhauser factors). “Although a district court has considerable leeway in weighing the different factors, ... the failure to balance at all requires remand ... to consider the respective interests.” In re Sealed Case, 856 F.2d 268, 272 (D.C.Cir.1988). Here, the district court must apply the Frankenhauser test, even if in a flexible manner, when making its privilege determinations. Coughlin, 946 F.2d at 1160 (instructing the district court to consider the Frankenhauser factors on remand in determining whether documents are discoverable). Additionally, the law enforcement privilege is bounded by relevance and time constraints. Petitioner argues that documents pertaining to “individuals who are under investigation, or who were investigated by ICE [Immigration and Customs Enforcement] in the past, or who are suspected of violating the criminal or civil provisions of treaties, statutes, executive orders and presidential proclamations administered by ICE” are protected. Petitioner" }, { "docid": "13879318", "title": "", "text": "(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case. Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973). The weightiest of these factors would appear to be the one Judge Becker reserves for last: the importance of the information to the plaintiff’s case. See Culp v. Devlin, 78 F.R.D. 136, 139-41 (E.D. Pa.1978) (Newcomer, J.). Plaintiff asserts, and defendants do not deny, that the material plaintiff seeks to discover is vital to his case against Commissioner O’Neill and Captain Murphy, the supervisors of the officers allegedly involved in the shooting. Under Section 1983 (of Title 42), the extent of supervisors’ knowledge of and participation in the acts of their subordinates determines the scope of their liability for their subordinates’ action. See, e. g., Taylor v. Gibson, 529 F.2d 709, 716 (5th Cir. 1976); Fisher v. Volz, 496 F.2d 333, 349-50 (3d Cir. 1974). The knowledge of its supervisory and policymaking employees may also bear on the asserted liability of the City under Section 1983. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 2041 and n. 66, 56 L.Ed.2d 611 (1978). The extent of supervisors’ knowledge of and participation in the acts of subordinates is also the critical consideration in determining supervisory liability under the pendent state causes" }, { "docid": "10692914", "title": "", "text": "has no other means to obtain the relief sought. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). Yet, this Court does not know whether any of the disputed documents fall within the realm of the privilege. The documents were not presented for our review. In any event, determining privilege is a “particularistic and judgmental task” of balancing the “need of the litigant who is seeking privileged investigative materials ... against the harm to the government if the privilege is lifted.” Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir.1997). In this case, we think this task — the determination of privilege following an initial review of the documents— is best left to the district court. B. Determining Whether the Law Enforcement Privilege Protects Particular Documents On remand, the district court should review the documents at issue in camera to evaluate whether the law enforcement privilege applies to the documents at issue. In making its determinations, the court must balance “the government’s interest in confidentiality against the litigant’s need for the documents.” Coughlin, 946 F.2d at 1160. The court, therefore, should consider the Frankenhauser factors. See Franken-hauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa. Mar.13, 1973) (unpublished) (developing the factors). The oft-cited Frankenhauser test consists of weighing the following ten factors: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether" }, { "docid": "6096952", "title": "", "text": "at 1342. This Circuit has cited the list contained in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973), as illustrative of the factors the district court must consider: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources: (10) the importance of the information sought to the plaintiffs case. Id. at 344; Friedman, 738 F.2d at 1342-43. The District Court’s order in this case does not show engagement in this essential balancing process. Although a district court has considerable leeway in weighing the different factors, Multi-Piece Rim Products, 653 F.2d at 679, the failure to balance at all requires remand to the District Court to consider the respective interests of appellant and the SEC in the information protected by the law enforcement investigatory privilege. On remand the District Court is not required, sua sponte, to consider possible modifications of appellant’s discovery request. When the privilege is asserted for documents, as distinct from testimony, the physical nature of the materials requested permits the court to consider application of the privilege to individual files. See Northrop, 751 F.2d at 403 (district court must give appropriate consideration to modifying the subpoena for documents to accommodate the interests of the parties); Federal Rule of Civil Procedure 45(b)(1). However, written deposition questions do not lend themselves to modification by the Court. The Court has no duty to rewrite appellant’s questions to" }, { "docid": "12561178", "title": "", "text": "law and is expressly rejected in Federal Rule of Evidence 402, which states that materiality should have no part in construing the Federal Rules. In addition, under California Evidence Code section 1043, the burden of overcoming the assertion of a privilege is placed on the party requesting discovery, whereas under federal law, the burden of resisting discovery is on the party opposing discovery. Id. at 299 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975)). Finally, under California law, the requesting party must come forward with affidavits showing good cause for the disclosure, whereas in federal privilege cases, the party resisting discovery has the burden of specifically identifying the disputed records so the requesting party has an opportunity to challenge the assertion of the privilege. Miller v. Pancucci, 141 F.R.D. at 299. . In adopting this pre-weighting test in favor of disclosure, the Kelly court determined that the policies underlying civil rights laws, public confidence in the court system, and in doing individual justice outweighed both the police department’s desire for secrecy and privacy rights of officers or citizen complainants. Id. at 661. . If the party asserting the privilege meets the threshold requirement, the court will conduct a balancing analysis that considers, but is not limited to, the following factors: (1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which government self-evaluation and consequent program improvement will by chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the" }, { "docid": "11776400", "title": "", "text": "HH.3 — — — B. Bush note to J. Sposato re: 5/13/99 phone WP call with D. Katz . Attached to this opinion is an appendix which (1) identifies the individuals named in the defendant’s privilege log and (2) contains a chart indicating the date, author, recipient, topic of the documents claimed to be privileged and the privilege claimed. . The name of this person has been provided plaintiff’s counsel under a protective order. . Note that the defendants also claim the attorney-client privilege as to Document E. I do not resolve that claim because I find Document E to be otherwise privileged. . See generally Eugene Burger Management Corp. v. HUD, 192 F.R.D. 1 (D.D.C.1999). . Judicial Watch v. United States Department of Justice, 102 F.Supp.2d 6 (D.D.C.2000). . This Counsel is the head of the Office of Professional Responsibility. 28 C.F.R. § 0.39 (2000). Jarrett is Counsel. . In addressing this question, the District Court was required to weigh \"[t]he public interest in nondisclosure ... against the [appellants’] need ... for access to the privileged informa tion.” In re Sealed Case, 856 F.2d at 272. To achieve this end, a number of factors must be considered, including: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff's case. Tuite v. Henry, 98 F.3d" }, { "docid": "8829617", "title": "", "text": "“(1) there must be a formal claim of privilege by the head[s] of the department[s] having control over the requested information; (2) assertion of the privilege must be based on actual personal consideration by [those] official(s); (3) the information for which the privilege is claimed must be specified, with an explanation of why it properly falls within the scope of the privilege.” In re Sealed Case, 856 F.2d 268, 271 (D.C.Cir.1988) (citing Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341-42, 238 U.S.App. D.C. at 195-96 (D.C.Cir.1984); Black v. Sheraton Corp., 564 F.2d 531, 542-43 (D.C.Cir. 1977)). Once this privilege is properly invoked, the court must engage in a balancing of the public’s interest in nondisclosure of the information versus the plaintiffs’ need for access to the investigatory files. Id. at 272. The proponent of the law enforcement privilege bears the burden of proving its claim. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341-2, 238 U.S.App.D.C. at 195-96 (D.C.Cir.1984). The Court of Appeals for the District of Columbia Circuit has directed district courts to consider certain factors, as set forth in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973), when performing this balancing: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information or having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources[; and] (10) the importance of the information sought to the plaintiffs case. In re Sealed Case, 856" }, { "docid": "8829618", "title": "", "text": "has directed district courts to consider certain factors, as set forth in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973), when performing this balancing: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information or having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources[; and] (10) the importance of the information sought to the plaintiffs case. In re Sealed Case, 856 F.2d at 272 (citing Frankenhauser, 59 F.R.D. at 344). Importantly, across-the-board claims of law enforcement privilege supported only by con-clusory statements will not suffice. The court of appeals has recognized this insufficiency when it rejected another government agency’s all-inclusive claims of law enforcement privilege over its own investigatory files: The major error we perceive in the district court’s order [upholding the law-enforcement privilege claim], however, is that the existence of a qualified law-enforcement investigatory files privilege as to all of the subpoenaed documents had not been sufficiently established by [the agency] so as to support wholesale and final rejection of [plaintiffs] motion to compel compliance. The party claiming privilege has the burden to establish its existence.... Formally claiming a privilege should involve specifying which documents or class of documents are privileged and for what reasons, especially where the nature of requested documents does not reveal an obviously privileged matter. Friedman, 738 F.2d at 1341, 238 U.S.App. D.C. at 195-96. A governmental entity’s claim of law enforcement privilege over materials that bears upon its own employees’" }, { "docid": "1714976", "title": "", "text": "the information for which the privilege is claimed with an explanation why it properly falls within the scope of the privilege. In re Sealed Case, 856 F.2d at 271. Again, we find that the District Court committed no error in concluding that the Shaheen Declaration submitted in response to the motion to comply meets these requirements. Mr. Shaheen, who is counsel to the OPR, indicated that he had personally reviewed the documents under subpoena, specified the privilege claimed with respect to each document, and provided an explanation of the reasons for each claim of privilege. See Office of Professional Responsibility’s Opposition to Plaintiffs’ Motion to Comply with Subpoena Dated July 20, 1994, Tuite, Mise. No. 94-268, reprinted in J.A. 90,113. B. Evaluating a Claim, of Privilege Having found that appellees properly asserted their claims of privilege, we now face the more difficult question focused on the merits of appellants’ discovery request as against appellees’ claim of privilege. In addressing this question, the District Court was required to weigh “[t]he public interest in nondisclosure ... against the [appellants’] need ... for access to the privileged information.” In re Sealed Case, 856 F.2d at 272. To achieve this end, a number of factors must be considered, including: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiffs" }, { "docid": "10006790", "title": "", "text": "turns its attention to plaintiffs’ motion. II. Analysis A. The Law Enforcement Investigatory Privilege and the Frankenhauser Standard Plaintiffs’ subpoena seeks all documents, including reports and memoranda, concerning the alleged taping of attorney-client communications at the MCC in the criminal case of United States v. Infelise. As stated, in response to this subpoena, OPR asserted that the law enforcement investigatory privilege permitted OPR to withhold these documents from production. The federal law enforcement privilege is a qualified privilege designed to prevent disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement. The privilege serves to preserve the integrity of law enforcement techniques and confidential sources, protects witnesses and law enforcement personnel, safeguards the privacy of individuals under investigation, and prevents interference with investigations. In the instant case, this court has already determined that OPR properly asserted the law enforcement investigatory privilege and this determination was affirmed by the Court of Appeals. Because this is a qualified privilege, its application necessarily requires a court to weigh the government’s interests in ensuring the secrecy of the documents in question against the need of the adverse party to obtain discovery. The court in Frankenhauser listed several factors which, although not exhaustive, are useful in making this determination: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is nonfrivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance" }, { "docid": "13879317", "title": "", "text": "that relevant evidence is privileged “must be so meritorious as to overcome the fundamental importance of a law meant to insure each citizen from unconstitutional state action.” Id. All the cases recognize, however, that there will be some situations in which police investigative and personnel files will need to be kept secret to protect some public interest, and most recognize that the decision whether to suppress certain documents must be made after balancing the need for their discovery against the particular reasons advanced to support confidentially. See, e. g., Swanner v. United States, 406 F.2d 716, 719 (5th Cir. 1969); Jabara v. Kelley, 75 F.R.D. 475 (E.D.Mich.1977); Wood v. Breier, supra. While there is no definitive list of considerations to be used in determining whether any particular piece of evidence should be discovered, Judge Becker has set out a list of ten factors, many of which will be relevant to most cases: In the context of discovery of police investigation files in a civil rights case, however, at least the following considerations should be examined: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case. Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973). The weightiest of these factors would appear to be the one Judge Becker reserves for last: the importance of" }, { "docid": "12561179", "title": "", "text": "privacy rights of officers or citizen complainants. Id. at 661. . If the party asserting the privilege meets the threshold requirement, the court will conduct a balancing analysis that considers, but is not limited to, the following factors: (1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which government self-evaluation and consequent program improvement will by chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff’s case. Kelly v. City of San Jose, 114 F.R.D. at 663 (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973)). . Plaintiff has previously stipulated that certain documents contained in the personnel files will not be sought in discovery. Those documents that are sought are considered in the Court’s analysis, discussed infra. . The Tenth Circuit has adopted the \"Colorado test” to determine whether information contained in personnel files is of such a highly personal or sensitive nature that it falls within the zone of confidentiality and should be shielded from discovery. Courts consider (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner. Denver Policemen’s Protective Ass'n v. Lichtenstein, 660 F.2d at 435. Police personnel files and internal investigation files are not protected by the right of privacy when the documents \"related simply to the officers’ work as police officers.” Id.; see Flanagan" }, { "docid": "18360579", "title": "", "text": "a law meant to insure each citizen from unconstitutional state action.” Scouler v. Craig, 116 F.R.D. 494, 496 (D.N.J.1987) (quoting Wood v. Breier, 54 F.R.D. 7, 13 (E.D.Wis.1972)); Spell v. McDaniel, 591 F.Supp. 1090, 1116 (E.D.N.C.1984). The court’s balancing function requires consideration of a number of factors, the fullest characterization of which was made by then District Court Judge Becker: In the context of discovery of police investigation files in a civil rights case, however, at least the following considerations should be examined, (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case. Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973). Based on an in camera review of the material submitted to the court, the contents of BRI documents may be summarized as follows: (1) Report I summarizes cases arising in Falls Township during the period January 1, 1985, to January 31, 1988, in which charges were withdrawn by the police or dismissed; (2) Report II discusses cases included in Report I in which mishandling, negligence, and mistakes occurred or in which the cause for dismissal could not be determined by BRI; and also includes various departmental orders (some of which are addressed to plaintiff Clark); (3) Report III discusses BRI’s findings, commentary, and recommendations in connection with its investigation of: (a)" }, { "docid": "10006791", "title": "", "text": "interests in ensuring the secrecy of the documents in question against the need of the adverse party to obtain discovery. The court in Frankenhauser listed several factors which, although not exhaustive, are useful in making this determination: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is nonfrivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiffs ease. 59 F.R.D. at 344. See also In re Sealed Case, 856 F.2d at 272. The court has considerable leeway weighing these factors in the undertaking of the essential balancing process and the nature of the case presented may warrant consideration of additional factors. In re Sealed Case, 856 F.2d at 272. Moreover, it is appropriate to conduct the balancing test for determining whether the law enforcement privilege applies with an eye towards disclosure. As the Supreme Court has stated “Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search the truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). See also Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D.Cal.1992) (“This balancing test has been moderately pre-weighted in favor of disclosure.”). B. Application of the Frankenhauser Factors 1. The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government" }, { "docid": "6096951", "title": "", "text": "issue. Declaration of Jonathan G. Katz, Secretary of the Securities and Exchange Commission, August 24, 1987, App. 118-21. The Commission also specified the information to which the privilege applied. Id. at 118-20. The Commission further explained that disclosure of the information would jeopardize on-going investigations by prematurely revealing facts and investigatory materials to potential subjects of those investigations. Id. at 120. In support of this contention, the SEC submitted a lengthy declaration detailing the effect disclosure would have on its ongoing Wall Street investigation. Declaration of John H. Sturc, Associate Director of the SEC Division of Enforcement, August 20, 1987, App. 73, 85-6. In view of appellant’s broadly-worded deposition questions, the SEC has asserted the privilege with sufficient specificity and particularity. However, the law enforcement investigatory privilege is qualified. The public interest in nondisclosure must be balanced against the need of a particular litigant for access to the privileged information. Black, 564 F.2d at 545; Friedman, 738 F.2d at 1341. The process of identifying and weighing the competing interests cannot be avoided. Friedman, 738 F.2d at 1342. This Circuit has cited the list contained in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973), as illustrative of the factors the district court must consider: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources: (10) the importance of the information sought to the plaintiffs case. Id. at" }, { "docid": "3884108", "title": "", "text": "here, the privilege claimed is qualified, not absolute, the process of identification and weighing cannot be avoided. Specifically with respect to the common-law law-enforcement investigatory files privilege, many factors must be addressed. A helpful list appears in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973): (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclo sure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the informa-' tion sought to the plaintiff’s case. Departure from the well-established sequence of burdens of going forward in qualified privilege disputes is not justified by the fact that the Friedman subpoenas expressly describe their target as law-enforcement investigatory files. There is a considerable variety of law-enforcement investigatory files and there is a considerable variety of information within particular law-enforcement investigatory files. CFTC represented to the district court that much of the content of its silver investigation files is in the public domain, and it suggested that these non-confidential documents would be available to Friedman upon request under the Freedom of Information Act. That the qualified privilege is not claimed as to the entire files only adds to the necessity that the process of adjudication of the privilege begin with a deliberate and reasonably specific delineation of the claim by CFTC. With the proceeding in its February 9, 1983 posture, decision on the merits on any ground and in either direction was premature, with" }, { "docid": "1029643", "title": "", "text": "within the scope of the law enforcement investigatory privilege does not end the Court’s analysis.” Polypropylene, 181 F.R.D. at 688. The law enforcement investigatory privilege is not absolute. It can be overridden in appropriate cases by the need for the privileged materials. See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir.1997), citing Tuite v. Henry, 98 F.3d 1411, 1417-18 (D.C.Cir.1996). The balancing of that need — the need of the litigant who is seeking privileged investigative materials — against the harm to the government if the privilege is lifted “is a particularistic and judgmental task.” Dellwood Farms, 128 F.3d at 1125. It is therefore confided to the discretion of the district court, meaning that appellate review is deferential. Id., citing Tuite, 98 F.3d at 1415-16. Defendants, the party claiming the privilege, bear the burden of justifying application of the investigatory privilege. See Doe v. Hudgins, 175 F.R.D. 511, 514-15 (N.D.Ill.1997). In balancing the public interest in protecting police investigations against the needs of civil rights plaintiffs, the Court will consider ten factors first announced in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973), which, “although not exhaustive, are useful in making this determination.” Tuite v. Henry, 181 F.R.D. 175, 177 (D.D.C.1998). These factors are: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is nonfrivo-lous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought" }, { "docid": "14983530", "title": "", "text": "cases cited therein. In examining the applicability of the privilege the Court is mindful of the fundamental tenet of the federal discovery rules which is to provide liberal pretrial discovery. Thus the evidentiary privilege is to be narrowly construed. The qualified privilege for criminal investigations permits the court to balance the interests of the litigant seeking the information against the government’s interest in nondisclosure. If the litigant demonstrates that his need for the information outweighs the government’s interest in maintaining secrecy, the qualified privilege is overcome. See United States v. O’Neill, 81 F.R.D. at 666. It has been suggested that in making this case by case determination, the court consider at least the following factors for discovery of police investigative files: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case. Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973). The factors delineated in Frankenhauser although not exhaustive, are appropriate for a consideration of the privilege for the State Attorney’s criminal investigative files. The court does, however, recognize that some supervision of the discovery of governmental documents is needed to protect the decision making process as well as the sources of information received by the governmental unit. See Boyd v. Gullett, 64 F.R.D. 169, 178 (D.Md.1974). Accordingly, an in camera inspection of the" }, { "docid": "3884107", "title": "", "text": "L.Ed. 727 (1953)). See United States v. Winner, 641 F.2d 825, 831-832 (10th Cir.1981); United States v. O’Neill, 619 F.2d 222, 225-227 (3rd Cir.1980). CFTC had made a generalized claim that the requested documents are protected by a common-law law-enforcement investigatory files privilege. CFTC’s attorney in the district court had suggested disclosure would reveal law enforcement techniques and sources: disclose strategy, procedures, and direction of the investigation, forewarn suspects, deter witnesses from providing candid testimony, invite others to seek discovery. However, the files had not been examined for this purpose by responsible members or officers of CFTC. No specific documents or classes of documents had been identified. Until the claim of privilege has been presented to a district court with appropriate deliberation and precision and the duty of the demanding party to show his or her need for disclosure has thus been triggered, and until that duty has then been discharged by the demanding party, the district court is not equipped to engage in the task of identifying and weighing the competing interests. When, as here, the privilege claimed is qualified, not absolute, the process of identification and weighing cannot be avoided. Specifically with respect to the common-law law-enforcement investigatory files privilege, many factors must be addressed. A helpful list appears in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973): (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclo sure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether the information sought is available through" } ]

[ { "docid": "10905909", "title": "", "text": "of named plaintiffs’ inability to finance cost of notice to all members of a larger class). In the present case, the plaintiffs’ counsel — Onondaga Neighborhood Legal Services (ONLS), an organization that provides free legal services to indigents — has agreed to advance all litigation expenses, and, therefore, the unwillingness (or inability) of the named plaintiffs to provide the necessary financing does not render them inadequate class representatives. In re Bristol Bay, Alaska, Salmon Fishery Antitrust Litigation, 78 F.R.D. 622, 627 (W.D.Wash.1978); Guse v. J. C. Penney Co., 409 F.Supp. 28, 31 (E.D.Wis.1976), rev’d on other grounds, 562 F.2d 6 (7th Cir. 1977); Sayre v. Abraham Lincoln Federal Savings & Loan Association, 65 F.R.D. 379, 383 (E.D.Pa.1974), modified, 69 F.R.D. 117 (E.D.Pa.1975). In the present circumstances, the financial status of plaintiffs’ counsel might be relevant to the issue of adequacy of representation, Guse v. J. G. Penney Co., supra, 409 F.Supp. at 30-31; Sayre v. Abraham Lincoln Federal Savings & Loan Association, supra, 65 F.R.D. at 383, but defendant does not challenge the ability of ONLS to advance the funds in question. Defendant does, however, argue that plaintiffs’ attorneys are guilty of unethical conduct in agreeing to pay the litigation expenses without an understanding with their clients that the clients will reimburse ONLS for such expenses, regardless of the outcome of this action. The case law is unclear on the extent to which ethical considerations are relevant to the question of class certification. Some courts have denied class certification motions, at least partly on the basis that the attorneys were guilty of misconduct (particularly solicitation). Carlisle v. LTV Electrosystems, Inc., 54 F.R.D. 237 (N.D.Tex.1972); Simon v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 16 Fed.R.Serv.2d 1021 (N.D.Tex.1972); Taub v. Glickman, 14 Fed.R.Serv.2d 847 (S.D.N.Y.1970). Certain other courts have held that only the most egregious misconduct will ever arguably justify the denial of class action status. Halverson v. Convenient Food Mart, Inc., 458 F.2d 927, 932 (7th Cir. 1972); Fallen v. Nexus Corp., 16 Fed.R.Serv.2d 1016 (N.D.Ill.1972). See also Kronenberg v. Hotel Governor Clinton, Inc., 281 F.Supp. 622 (S.D.N.Y.1968). In addition," } ]

[ { "docid": "16866819", "title": "", "text": "have a sufficient understanding of the purpose of the lawsuit to adequately represent the unnamed class members. In this regard, it should be noted that the matter of the adequacy of the class representative is not a legal question, but a factual inquiry, the resolution of which depends on all the facts and circumstances of a particular case and is entrusted to the discretion of the trial court. Dudo v. Schaffer, 93 F.R.D. 524, 531-32 (E.D.Pa.1982); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir.1981). While the depositions of the named plaintiffs and their representatives are not the best examples of individuals schooled in sophisticated use of the English language or legal lexicon; such skills are not crucial in determining adequacy of representation. The plaintiffs provided a factual basis to counsel for the instigation of an investigation and lawsuit. Their knowledge of the facts was sufficient to allow attorneys for Legal Services to frame a claim for relief. See Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 102 (S.D.N.Y.1981), quoting Chevalier v. Baird Savings Association, 72 F.R.D. 140, 146 (E.D.Pa.1976): There is no doubt that the named plaintiffs have a very sketchy view of what this litigation is all about. We also do not doubt that counsel are proceeding in this case without significant restraints from the named plaintiffs. Nevertheless, we cannot agree that this thereby renders a class action inappropriate. Similarly, in the instant case, plaintiffs, have given their attorneys unfettered discretion in the prosecution of this lawsuit. However, plaintiffs have also, in their own fashion, expressed the desire to see that the wrong allegedly done to them is not done to others. Deary v. Guardian Loan Co., 534 F.Supp. 1178, 1190 (S.D.N.Y.1982). Moreover, the plaintiffs have made themselves available for depositions and have been, for the most part, cooperative and responsive to the best of their ability. Such behavior is especially probative of plaintiffs’ willingness to see the case through when some plaintiffs have preferred to withdraw rather than be so inconvenienced. The plaintiffs who remain in the instant action are adequate representatives of" }, { "docid": "95832", "title": "", "text": "and that claim is closely bound up with the FLCRA allegations. The conflict thus undermines Aguirre’s ability to represent the other farmworkers on their FLCRA claim as well. The remaining named plaintiffs, however, fully satisfy the fourth prerequisite. They share a common interest with the class members, and they are represented by competent counsel with resources especially suited to conducting litigation for the benefit of migrant laborers. See Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). The difficulty presented by Aguirre’s presence among the class representatives can be resolved by striking him from the list of representatives and requiring him to pursue his claim individually. See Weisman v. Darneille, 78 F.R.D. 671 (S.D.N.Y.1978). Aguirre’s FLCRA claim will therefore be severed along with his FLSA claim. Defendants argue that the remaining named plaintiffs are inadequate representatives because they are uneducated laborers without the knowledge necessary to control this lawsuit. It is noteworthy that these objections focus only on plaintiffs’ formal education, not on their knowledge of the facts underlying this suit or their understanding of the essence of their legal claims. The plaintiffs have first-hand knowledge of the conditions under which they were recruited and employed. The alleged FLCRA violations, which involve a failure to make required disclosures to the employees and to keep records relating to their employment, can be understood by persons without advanced schooling. In these circumstances, accepting defendants’ suggestion that only litigants arguably more able to supervise their attorneys can be adequate guardians of class rights would severely undercut the utility of the class action as a device to aid those most in need. See Wellman v. Dickinson, 79 F.R.D. 341 (S.D.N.Y.1978). Each named plaintiff has a personal financial stake in the outcome of this suit. There is no showing that the representative parties cannot make practical decisions during the course of the lawsuit that would protect the interests of the class. The evidence submitted for the motion hearing shows that the named plaintiffs have consulted with their attorneys and have responded to" }, { "docid": "14916620", "title": "", "text": "need not have extensive knowledge of federal securities laws or complete familiarity with all particulars of the lawsuit; class representative’s awareness of the basic facts underlying the lawsuit as alleged in the complaint and of his obligations to fellow class members suffices); County of Suffolk, 710 F.Supp. at 1416 (stating that in complex actions “named plaintiffs are not required to ‘have expert knowledge of all the details of the case ... and a great deal of reliance on expert counsel is to be expected’ ”); Trautz v. Weisman, 846 F.Supp. 1160, 1168 (S.D.N.Y.1994) (finding adequate representation in RICO case where plaintiffs deposition revealed an extremely limited understanding of (1) the RICO statute, (2) facts asserted in complaint, and (3) his role as a class representative); In re THQ Inc. Sec. Litig., No. CV 00-1783AHM, 2002 WL 1832145, at *7 (C.D.Cal. Mar. 22, 2002) (holding that although some representatives were unfamiliar with some details of the case and were unaware that they might be liable for costs and fees if the claim was unsuccessful, that level of unfamiliarity with the class action was not sufficient to defeat class certification). Particularly where members of the class are laypersons without any necessary business or legal experience and the claims are small, detailed knowledge of the claim is inappropriate, approaching irrelevance. (b) Credibility of representatives It is appropriate to consider the “honesty and trustworthiness” of class representatives. Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir.1998). Potential class representatives may not be adequate representation for the class if they “are so lacking in credibility that they are likely to harm their case.” In re Frontier Ins. Group, Inc. Sec. Litig., 172 F.R.D. 31, 47 (E.D.N.Y.1997) (citing Panzirer v. Wolf, 663 F.2d 365 (2d Cir.1981)). Plaintiffs have been found to be inadequate class representatives where their testimony on an “issue critical to” the cause of action was “subject to sharp attack.” Kline v. Wolf, 702 F.2d 400, 403 (2d Cir.1983). See, e.g., Panzirer, 663 F.2d at 368 (finding that lack of credibility made the plaintiff an inadequate class representative where the plaintiff had" }, { "docid": "15698760", "title": "", "text": "(1971). The second element of adequate representation is that the named plaintiffs’ counsel be sufficiently competent to conduct the proposed litigation. Sullivan v. Chase Investment Services, Inc., 79 F.R.D. 246 (N.D.Cal.1978); Jenson v. Continental Financial Corp., 404 F.Supp. 806 (D.Minn.1975). Plaintiffs are represented by attorneys from Legal Services Organization of Indiana, Inc., and Legal Services Program of Northern Indiana, Inc., both being legal services programs which have extensive experience in prison law and in protecting the rights of group litigants. Legal Services Organization has adequate resources available to fully pursue this action. The attorneys who are counsel of record in this case are experienced in conducting litigation of this type. Thus, plaintiffs’ counsel has the experience and the resources to protect and forward the interests of not only the named plaintiffs but also each member of the class. THE PRESENT CASE FALLS WITHIN THE CATEGORY OF CLASS ACTIONS IN WHICH THE PARTY OPPOSING THE CLASS HAS ACTED OR FAILED TO ACT ON GROUNDS GENERALLY APPLICABLE TO THE CLASS, THEREBY MAKING APPROPRIATE FINAL INJUNCTIVE AND DECLARATORY RELIEF WITH RESPECT TO THE CLASS AS A WHOLE. In addition to satisfying the requirements of Rule 23(a), the present actions falls within the criteria of Rule 23(bX2). The Notes of the Advisory Committee, 39 F.R.D. 69, 102 (1976), suggest that subsection 23(b)(2) is uniquely suited to civil rights actions to redress constitutional deprivations of large classes of persons. See also, Fujishima v. Board of Education, 460 F.2d 1355, 1360 (7th Cir. 1972); Inmates of Lycoming County Prison v. Strode, supra, at 234; Hopson v. Schilling, supra, at 1237; Dixon v. Quern, 76 F.R.D. 617 (N.D.Ill.1977). These are two elements which must be present for an action to fall within 23(b)(2): “the defendants’ conduct or refusal to act must be ‘generally applicable’ to the class”; and, “final injunctive or corresponding declaratory relief must be requested for the class.” Kornbluh v. Stearns & Foster Co., 73 F.R.D. 307, 310. Both elements are met in the instant case. As has been previously set out in this memorandum, all class members in this case are being subjected to" }, { "docid": "17799058", "title": "", "text": "Lincoln Fed. Sav. & Loan Ass’n, 65 F.R.D. 379, 385 (E.D.Pa.1974). In a case such as this, where injunctive relief is sought and plaintiffs’ individual damages may be small, the extensive costs of class litigation could preclude many victims of racial discrimination from ever being able to vindicate their rights. Fee arrangements which provide no reasonable expectation of reimbursement are not to be condoned, but a contrary ruling under these circumstances would prevent plaintiffs of modest means from pursuing a class action. Although the fee arrangement may give rise to a technical deviation from ethical standards, denial of class certification is unwarranted. See Brame v. Ray Bills Fin. Corp., 85 F.R.D. 568, 577-78 (N.D.N.Y.1979); see also Note, Developments in the Law—Class Actions, 89 Harv.L.Rev. 1318, 1622-23 (1976) (absolute ban on advancing costs is not appropriate when it would effectively prevent a class suit). There is no indication that counsel’s agreement to advance costs will compromise his representation of plaintiffs or unduly prejudice the class. Absence of Conflicting Interests To further the best interests of the class, the class representatives must have sufficient personal knowledge of the underlying facts and be capable of understanding the nature of the case. 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1766 (2d ed. 1986). Defendants claim that Green and Harris do not have the character necessary to vigorously represent the class. Rather, defendants contend, Green and Harris are merely lending their names to a suit controlled by the class attorney. Notwithstanding defendants’ assault on plaintiffs’ credibility, Green and Harris have first-hand knowledge and understanding of the case. Both applied for jobs at GDC, were actually interviewed by defendants, and were allegedly denied employment because of their race. Even if the individual monetary damages are small, plaintiffs have a significant interest in enjoining defendants from engaging in the very conduct that excluded them from employment. Thus, Green and Harris have a personal stake in the claims asserted on behalf of the class. This court is not convinced that the representatives lack the qualities needed to protect the interests of the" }, { "docid": "7317187", "title": "", "text": "(the proposed class representative) contends that he, “like the absent Class members, purchased his PolyMedica stock during the Class Period at prices that were artificially inflated due to Defendants’ material misrepresentations, and suffered losses as a result thereof. [His] claims are based upon the same facts and legal theories as the rest of the Class.” (Pl.’s Memo., Docket No. 62, at 5.) Dr. Thuma asserts that he thus satisfies the typicality requirement. Defendants do not contest this assertion. I am persuaded that plaintiff Thuma’s claims are typical of the claims of the class. Accordingly, I find that plaintiff has met the third prerequisite under Rule 23(a). 4. Adequacy of Representation Rule 23(a)(4) also addresses the certification of the lead plaintiff. “Inquiries into the adequacy of representation should focus on the named plaintiff’s] ability to prosecute the action vigorously through qualified counsel and [his] lack of conflicting interest with unnamed class members.” Priest, 118 F.R.D. at 556 (internal quotation marks omitted); see also Kirby, 116 F.R.D. at 308-09 (“The two basic guidelines for meeting the adequacy of representation standard of Rule 23(a)(4) are: (1) the absence of potential conflict between the named plaintiffs and the class members and (2) ... assurance of vigorous prosecution.” (internal quotation marks omitted)). Plaintiff easily meets the requirement of vigorous prosecution through qualified counsel. The record demonstrates that plaintiffs attorneys have significant experience in federal securities class litigation. (Pl.’s Memo., Docket No. 62, at 6.) Defendants do not contend otherwise. In addition, plaintiff points to evidence in the record that shows his own vigoi'ous interest in the class action: he has reviewed the pleadings and consults regularly with the attorneys. (Id. at 7.) Such evidence is also persuasive, though not necessary in light of the proven competency of plaintiffs counsel. See Cheney, 213 F.R.D. at 495 (“In securities eases, where the class is represented by competent counsel, class certification should not be denied simply because of a perceived lack of subjective interest on the part of the named plaintiffs unless their participation is so minimal that they virtually have abdicated to their attorneys the conduct of" }, { "docid": "16866817", "title": "", "text": "which will be provided for the plaintiff class. Professor Miller has noted that an analysis of the adequacy of counsel is perhaps the “most abrasive and difficult aspect of the Rule 23(a)(4) analysis for a district judge.” A preeminent factor in the determination is the attorney’s experience in handling litigation of the type involved in the case. Other factors include the attorney’s motivation, competence, support personnel, and other professional commitments. In the case, four attorneys employed by the Georgia Legal Services Program represent the individual plaintiffs. A fifth attorney is representing the NAACP. Each of the five attorneys representing the plaintiffs in the instant case have substantial experience in federal civil rights litigation, as is evidenced by the affidavits submitted by these counsel in support of the motion for class certification. Plaintiffs’ counsel have vigorously, if not zealously, prosecuted the pending action which has included extensive discovery on the issue of class certification. Moreover, Georgia Legal Services Programs, Inc. has earmarked $114,000 for the prosecution of this action. Attorneys provided by a legal services organization are not rendered incompetent under Rule 23(a)(4) simply be- . cause their employer advances the costs of litigation without expecting reimbursement if unsuccessful. Wolkenstein v. Reville, 539 F.Supp. 87, 91 (W.D.N.Y.1982); Brame v. Ray Bills Finance Corp., 85 F.R.D. 568, 575-78 (N.D.N.Y.1979); see also Holland v. Steele, 92 F.R.D. 58, 64 (N.D.Ga.1981); Aguirre v. Bustos, 89 F.R.D. 645 (D.C.N.M. 1981) (Facts that the named plaintiffs were uneducated laborers and that they were poor did not mean that they were inadequate class representatives on the theory that they lacked the knowledge necessary to control the lawsuit, when they had firsthand knowledge of the conditions that gave rise to the suit, or on the theory that they could not adequately finance the action, when the legal services organization had set aside the funds necessary to conduct the suit). Counsel for plaintiffs have shown a willingness to commit the time, energy and money necessary to litigate this case, and this Court considers them competent to do so. Various defendants have also submitted that the named plaintiffs do not" }, { "docid": "2196831", "title": "", "text": "of particular importance because inadequate representation would infringe upon the due process rights of absentee class members who are bound by the final judgment of the suit.” Edgington v. R.G. Dickinson & Co., 139 F.R.D. 183, 190 (D.Kan.1991). Under Rule 23(a)(4), the proposed class representatives must assure the court that their interests “are sufficient to induce vigorous advocacy on their part; that their interests are not antagonistic to those of class members; and that they have the means, including competent counsel, to pursue their case.” Wyandotte Nation v. City of Kansas City, Kansas, 214 F.R.D. 656 (D.Kan.2003). “Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir.2002) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998)). Determining whether the named plaintiffs will be vigorous advocates for the class makes inquiry into various arenas appropriate. Plaintiffs may be found to be inadequate representatives where they lack personal knowledge concerning the type and extent of damages they have suffered, see Sunbird Air Services, Inc. v. Beech Aircraft Corp., 1992 WL 193661, *4 (D.Kan.1992), where they lack credibility concerning their liability claims, id., or where they have afforded their attorneys unfettered discretion to conduct the litigation, id. “This inquiry into the knowledge of the representative is to ensure that the party is not simply lending his name to a suit controlled entirely by the class attorney; the named party must be an adequate representative in addition to having adequate counsel. Wright, Miller & Kane, Federal Practice and. Procedure, § 1766 (2d ed.1986).” Sunbird Air Services, Inc., 1992 WL 193661 at *4. Similarly, a class representative may be found to be inadequate if he has physical or mental limitations which may preclude him from being in a position to act in the best interest of the class. See Edgington, 139 F.R.D. at 195-196 (noting serious questions" }, { "docid": "2717320", "title": "", "text": "counsel”). A. Class Representative’s Interests Must Not be Antagonistic to Other Class Members and Representative Must Aggressively Pursue the Litigation Courts do not require the representative plaintiff to be the best of all possible plaintiffs or to be especially knowledgeable, intelligent, or possessing a detailed understanding of the legal or factual basis on which a class action can be maintained. See. e.g., Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 366, 86 S.Ct. 845, 847, 15 L.Ed.2d 807 (1966). The Uniondale Beer court phrased it as follows: We find from the evidence submitted that the named plaintiffs have a sufficient knowledge and understanding of the lawsuit to indicate their interest and intent vigorously to prosecute it. As stated by the Honorable Leonard Wexler under similar circumstances: “The law does not require the named plaintiff to possess an extensive knowledge of federal securities law ... or even complete familiarity with all of the particulars of the pending lawsuit. It is enough that the class representative is aware of the basic facts underlying the lawsuit as alleged in the complaint____” 117 F.R.D. at 343-44 (quoting Michaels v. Ambassador Group Inc., 110 F.R.D. 84, 90 (E.D.N.Y.1986)). The Catfish court is in accord, stating: An antitrust litigant is not expected to appreciate the finer points of the Sherman Act, Clayton Act, or the Federal Rules of Civil Procedure governing class certification. To require the class representative to be sophisticated and knowledgeable enough to help counsel in this quest would reduce the class action device, especially in complicated antitrust cases, to an impotent tool. 826 F.Supp. at 1037; see also Aluminum Phosphide, 160 F.R.D. at 614 (“Rule 23 does not require class antitrust litigants to possess detailed knowledge of their lawsuit and be totally aware of all of the facts concerning the claims in issue.”). All three named Plaintiffs have testified at depositions in this case and have evidenced an adequate layman’s understanding of what this case is all about. (See Steffen Dep. at 62:10-20, 69:2-9, 72:2-3; Clark Dep. at 8:21-25, 58:13-18, 67:12-15; Mortensen Dep. at 26:14-17, 40:20-23.) Furthermore, all three are actively involved in" }, { "docid": "6308510", "title": "", "text": "at issue). See also Hoffman Elec., Inc. v. Emerson Elec. Co., 754 F.Supp. 1070, 1077 (W.D.Pa.1991) (plaintiffs lack of personal knowledge about facts of securities case did not indicate inadequate representation); Peil v. National Semiconductor Corp., 86 F.R.D. 357, 366 (E.D.Pa.1980) (adequacy of representation does not require person unschooled in realm of complex and abstract securities laws to have firsthand knowledge of facts). Accordingly, a proposed representative’s lack of particularized knowledge concerning the dispute at issue “does not render her inadequate given the fact that she has retained adequate counsel to represent her.” Ettinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 122 F.R.D. 177, 182 (E.D.Pa.1988). See also Shamberg v. Ahlstrom, 111 F.R.D. 689, 695 (D.N.J.1986) (Brotman, J.). Further, there is no reason for the Court to conclude that counsel would not adequately represent the class. See Hoxworth, 980 F.2d at 924 (plaintiffs’ attorney must be qualified, experienced, and generally able to conduct proposed litigation). Courts have not developed a particularized standard for what constitutes sufficient legal expertise. See e.g., In re Chambers Dev. Sec. Litig., 912 F.Supp. 822, 835 (W.D.Pa.1995) (adequacy found where counsel had extensive experience with class actions and securities law); Bowling v. Pfizer, Inc., 143 F.R.D. 141, 160 (S.D.Ohio 1992) (counsel, who had not litigated cases involving heart valves, was adequate because counsel had substantial experience in class actions and obtained special counsel with expertise in area); Jackson v. Rapps, 132 F.R.D. 226, 232 (W.D.Mo.1990) (attorney with twelve years experience was well qualified to be class counsel); Armstrong v. Chicago Park Dist., 117 F.R.D. 623, 631 (N.D.Ill. 1987) (class counsels’ limited experience in representing plaintiff classes not a bar to serving as counsel given general success to date). It is largely a question of fact for the District Court to determine on a case-by-case basis. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 728 (11th Cir.1987) (adequacy of representation is primarily a factual issue). Here, Plaintiffs’ counsel maintain they “are highly competent” and hold “significant experience in federal litigation and class action litigation” including “substantial experience in handling complex class eases.” (Pis.’ Class" }, { "docid": "95838", "title": "", "text": "does not indicate that the same test has been used to determine whether Aguirre can adequately represent these farm-workers on their FLSA claims and on their FLCRA claims, but rather that on the present facts he cannot properly assume either role. . This class is narrower than the class originally proposed in plaintiffs’ complaint. The new definition, propounded after the motion hearing, moots defendants’ claim that the farm-workers should be divided into subclasses depending on whether they were recruited directly by Bustos or by Aguirre. . The proposal to limit class membership to those workers who are personally contacted by a representative of the named plaintiffs and given a chance to opt out of the suit was offered in response to defendants’ claim that, due to the mobility of migrant workers and the absence of employment records, the members of the class would be impossible to identify. . Plaintiffs are represented by attorneys of Southern New Mexico Legal Services who themselves have experience representing migrant farmworkers and who have obtained assistance from the New Mexico Legal Services Support Project and the Migrant Legal Action Program. . Defendants also claim that the named plaintiffs cannot adequately finance a class action because they are poor. Counsel for plaintiffs has stated by affidavit that Southern New Mexico Legal Services has set aside the funds necessary to conduct this suit. This is sufficient proof, if proof be needed, that there is no financial impediment to the proposed class representation. . Plaintiffs assert that the action may be maintained under Rule 23(b)(2) as well. It does not appear that such certification would be appropriate. The claim pressed by plaintiffs seeks primarily monetary relief and does not allege the sort of class-based discriminatory conduct that is the principal target of Rule 23(b)(2) suits. See Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); Advisory Committee’s Note to Rule 23, 39 F.R.D. 69, 102 (1966). The issue loses its significance, however, because plaintiffs do not intend to exploit the absence of a notice requirement under Rule 23(b)(2); rather, they propose to include in their class" }, { "docid": "15698759", "title": "", "text": "the rights guaranteed to them by the First, Eighth and Fourteenth Amendments to the Constitution of the United States. The claims of the representative parties and those of the class are based upon alleged violations of these same constitutional provisions. D. The class representative will fairly and adequately protect the interests of the class. The standard for adequacy of representatives under Rule 23(a)(4) is that the representatives must be of such a character as to assure the vigorous protection of the action so that the absent class members’ rights are certain to be protected. Hohmann v. Packard Instrument Co., 399 F.2d 711 (7th Cir. 1968). The first requirement is plainly met in this case. Named plaintiffs’ interests in securing their statutory and constitutional rights is co-extensive with the similar interests of all class members. Secondly, the named plaintiffs have a vital personal stake in the outcome of the case so as to insure zealous pursuit of the action. Rodriquez v. Swank, 318 F.Supp. 289 (N.D.Ill.1970), aff’d, 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971). The second element of adequate representation is that the named plaintiffs’ counsel be sufficiently competent to conduct the proposed litigation. Sullivan v. Chase Investment Services, Inc., 79 F.R.D. 246 (N.D.Cal.1978); Jenson v. Continental Financial Corp., 404 F.Supp. 806 (D.Minn.1975). Plaintiffs are represented by attorneys from Legal Services Organization of Indiana, Inc., and Legal Services Program of Northern Indiana, Inc., both being legal services programs which have extensive experience in prison law and in protecting the rights of group litigants. Legal Services Organization has adequate resources available to fully pursue this action. The attorneys who are counsel of record in this case are experienced in conducting litigation of this type. Thus, plaintiffs’ counsel has the experience and the resources to protect and forward the interests of not only the named plaintiffs but also each member of the class. THE PRESENT CASE FALLS WITHIN THE CATEGORY OF CLASS ACTIONS IN WHICH THE PARTY OPPOSING THE CLASS HAS ACTED OR FAILED TO ACT ON GROUNDS GENERALLY APPLICABLE TO THE CLASS, THEREBY MAKING APPROPRIATE FINAL INJUNCTIVE AND DECLARATORY" }, { "docid": "16866820", "title": "", "text": "v. Baird Savings Association, 72 F.R.D. 140, 146 (E.D.Pa.1976): There is no doubt that the named plaintiffs have a very sketchy view of what this litigation is all about. We also do not doubt that counsel are proceeding in this case without significant restraints from the named plaintiffs. Nevertheless, we cannot agree that this thereby renders a class action inappropriate. Similarly, in the instant case, plaintiffs, have given their attorneys unfettered discretion in the prosecution of this lawsuit. However, plaintiffs have also, in their own fashion, expressed the desire to see that the wrong allegedly done to them is not done to others. Deary v. Guardian Loan Co., 534 F.Supp. 1178, 1190 (S.D.N.Y.1982). Moreover, the plaintiffs have made themselves available for depositions and have been, for the most part, cooperative and responsive to the best of their ability. Such behavior is especially probative of plaintiffs’ willingness to see the case through when some plaintiffs have preferred to withdraw rather than be so inconvenienced. The plaintiffs who remain in the instant action are adequate representatives of the class whose interests are in turn being competently represented by counsel for plaintiffs. The final element of Rule 23(a)(4) is that there must not be conflicting or antagonistic interests between the class representatives and those they seek to represent. In this regard, it is well-settled that only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status. Wright & Miller, Federal Practice and Procedure: Civil § 1768. Rather, an intraclass conflict will justify a finding that the plaintiff is an inadequate representative in only two instances. The class members either must have an interest for which judicial awareness provides no protection or the plaintiffs’ representation must be so incomplete that the Court cannot adjust the litigation structure to get a clear view of the class’ interests. Gill v. Monroe County Dept. of Social Services, 79 F.R.D. 316, 327 (W.D.N.Y.1978). Neither of these situations exist in the instant case. The class members, as black children in Georgia’s public schools, have an interest in seeing all" }, { "docid": "16866818", "title": "", "text": "are not rendered incompetent under Rule 23(a)(4) simply be- . cause their employer advances the costs of litigation without expecting reimbursement if unsuccessful. Wolkenstein v. Reville, 539 F.Supp. 87, 91 (W.D.N.Y.1982); Brame v. Ray Bills Finance Corp., 85 F.R.D. 568, 575-78 (N.D.N.Y.1979); see also Holland v. Steele, 92 F.R.D. 58, 64 (N.D.Ga.1981); Aguirre v. Bustos, 89 F.R.D. 645 (D.C.N.M. 1981) (Facts that the named plaintiffs were uneducated laborers and that they were poor did not mean that they were inadequate class representatives on the theory that they lacked the knowledge necessary to control the lawsuit, when they had firsthand knowledge of the conditions that gave rise to the suit, or on the theory that they could not adequately finance the action, when the legal services organization had set aside the funds necessary to conduct the suit). Counsel for plaintiffs have shown a willingness to commit the time, energy and money necessary to litigate this case, and this Court considers them competent to do so. Various defendants have also submitted that the named plaintiffs do not have a sufficient understanding of the purpose of the lawsuit to adequately represent the unnamed class members. In this regard, it should be noted that the matter of the adequacy of the class representative is not a legal question, but a factual inquiry, the resolution of which depends on all the facts and circumstances of a particular case and is entrusted to the discretion of the trial court. Dudo v. Schaffer, 93 F.R.D. 524, 531-32 (E.D.Pa.1982); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir.1981). While the depositions of the named plaintiffs and their representatives are not the best examples of individuals schooled in sophisticated use of the English language or legal lexicon; such skills are not crucial in determining adequacy of representation. The plaintiffs provided a factual basis to counsel for the instigation of an investigation and lawsuit. Their knowledge of the facts was sufficient to allow attorneys for Legal Services to frame a claim for relief. See Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 102 (S.D.N.Y.1981), quoting Chevalier" }, { "docid": "95833", "title": "", "text": "on their knowledge of the facts underlying this suit or their understanding of the essence of their legal claims. The plaintiffs have first-hand knowledge of the conditions under which they were recruited and employed. The alleged FLCRA violations, which involve a failure to make required disclosures to the employees and to keep records relating to their employment, can be understood by persons without advanced schooling. In these circumstances, accepting defendants’ suggestion that only litigants arguably more able to supervise their attorneys can be adequate guardians of class rights would severely undercut the utility of the class action as a device to aid those most in need. See Wellman v. Dickinson, 79 F.R.D. 341 (S.D.N.Y.1978). Each named plaintiff has a personal financial stake in the outcome of this suit. There is no showing that the representative parties cannot make practical decisions during the course of the lawsuit that would protect the interests of the class. The evidence submitted for the motion hearing shows that the named plaintiffs have consulted with their attorneys and have responded to defendants’ requests for discovery. The class action plaintiffs certainly possess that “minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision-making as to the conduct of the litigation” that is required of them. Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 487 (N.DCal.1978). Although courts have occasionally denied class certification because the representatives were inadequate to protect the class or to supervise their attorneys, nothing in the record here makes those cases applicable; there is no evidence that these class representatives are of bad character, are unwilling to pursue this action, or would disregard their duties, or that their attorneys are conducting this suit for their own gain. See Hernandez v. United Fire Insurance Co., 79 F.R.D. 419 (N.D.Ill.1978). It is therefore concluded that the class action plaintiffs will adequately protect the interests of the class. Having determined that a class action brought by the named plaintiffs, Carlos Aguirre excepted, meets the Rule 23(a) prerequisites, the Court must next consider whether the action falls within one of" }, { "docid": "5783912", "title": "", "text": "claims of the class. 4. Adequacy. Rule 23(a)(4) requires the movant to show that the representative party will fairly and adequately protect the interests of the class. Courts traditionally hold that it is necessary to determine: (1) that the plaintiffs attorney is qualified, experienced and will competently and vigorously prosecute the suit; and (2) that the interest of the class representative is not antagonistic to or in conflict with other members of the class. Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir.1985). It is undisputed that Plaintiffs attorney is qualified, experienced and will competently and vigorously prosecute the suit. GEICO maintains, however, that Powers cannot fairly and adequately protect the interests of the class. Specifically, Geico argues that Powers lacks knowledge about the case and the insurance industry in general. It is well-settled that it is not necessary for named class representatives to be knowledgeable, intelligent or have a firm understanding of the legal or factual basis on which the case rests in order to maintain a class action. In re Bristol Bay Fishery Antitrust Litigation, 78 F.R.D. 622 (W.D.Wash. 1978). See also Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 86 S.Ct. 845, 15 L.Ed.2d 807 (1966) (certifying a class where the named representative did not understand her complaint, could not explain statements contained therein, had little knowledge of the nature of the lawsuit and did not know the defendant’s name). This is especially true in cases involving complex areas of the law. Morris v. Transouth Financial Corp., 175 F.R.D. 694, 698 (N.D.Ala.1997). The record reveals that Powers is playing an active role in the litigation. She has appeared for deposition, produced documents and confers with counsel. The mere fact that Powers is not well-versed in insurance law or the intricacies of her case does not warrant a finding that she is inadequate to represent the class. B. Rule 23(b). A plaintiff seeking class certification must also satisfy one of the three subsections of Rule 23(b). Powers contends that certification is appropriate under either subsection 23(b)(2) and/or 23(b)(3). 1. Rule 23(b)(2). Rule 23(b)(2) certification is warranted when the" }, { "docid": "18442468", "title": "", "text": "Charles M. Jones of Hinesville, Georgia, and their respective firms have, to this point, done an excellent job in asserting the claims and interests of the named Plaintiffs and the putative class. While neither Attorney Hansen nor Attorney Jones has been lead counsel in any previous class action, both men have developed strong records in handling complex litigation in the federal courts. To this point, counsel for Plaintiffs have demonstrated their proficiency and professionalism. They have submitted excellent briefs on the Motion for Class Certification as well as on the pending Motions to Dismiss filed by the several Defendants. This Court is satisfied that neither Attorney Hansen nor Attorney Jones would leave any stone unturned were this case to proceed as a class action. “The vigorous prosecution test is generally satisfied upon the court’s determination that the plaintiffs attorney is professionally competent to conduct the particular litigation.” Brown, 92 F.R.D. at 40. This Court finds that Attorney Hansen and Attorney Jones are professionally competent to handle this litigation and, therefore, the attorney-competence criterion is met. Regarding the adequacy requirement, Defendants have mainly focused on the ability, vel non, of the class representatives to pay for the costs of conducting the complex litigation. Courts normally do not examine the finances of class representatives. Sanderson v. Winner, 507 F.2d 477, 479-80 (10th Cir.1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1573, 43 L.Ed.2d 780 (1975). Some courts, though, have permitted limited inquiry into the representatives’ finances. Pension Benefit Guar. Corp. v. LTV Corp., 122 F.R.D. 436, 440 (S.D.N.Y.1988); Tedesco v. Mishkin, 689 F.Supp. 1327, 1336 (S.D.N.Y.1988); Michaels v. Ambassador Group, Inc., 110 F.R.D. 84, 90-91 (E.D.N.Y.1986). In a Rule 23(b)(3) suit such as this, courts have allowed such inquiries because of the Eisen decision which makes the class representative responsible for paying costs of notice. 417 U.S. at 177, 179, 94 S.Ct. at 2152, 2153. It is, however, common practice for the class attorneys to advance such costs with recovery of the expenses dependent upon the outcome of the case. Rand v. Monsanto Co., 926 F.2d 596, 599 (7th Cir.1991). In this" }, { "docid": "16055967", "title": "", "text": "at state level involving large classes); In re Natural Gas Commodities Litig., 231 F.R.D. 171 (S.D.N.Y.2005) (counsel adequate where they had previously represented classes); Jeffreys v. Communications Workers of America, AFL-CIO, 212 F.R.D. 320 (E.D.Va.2003). Plaintiffs’ counsel have significant experience in class action litigation. See (Miller Decl. Ex. 2, 3, 4.) Finally, courts can evaluate the performance of counsel in prior stages of the instant case. See, e.g., Hatch v. Reliance Ins. Co., 758 F.2d 409 (9th Cir.1985); Mechigian v. Art Capital Corp., 612 F.Supp. 1421 (S.D.N.Y.1985); Zeffiro v. First Pennsylvania Banking & Trust Co., 96 F.R.D. 567 (E.D.Pa.1983); Twyman v. Rockville Housing Authority, 99 F.R.D. 314; Armstrong v. Chicago Park Disk, 117 F.R.D. 623 (N.D.Ill. 1987). The Court finds that Plaintiffs’ counsel has performed competently to date. Therefore, the Court concludes that Plaintiffs are represented by qualified and competent counsel, and determines that the requirements of Rule 23(a)(4) are satisfied. Hi Knowledge of Class Representatives As discussed above, the Ninth Circuit has never imposed such a knowledge requirement. However, because some district courts within the Ninth Circuit have imposed such a requirement, the Court will consider this factor. Defendants argue that the proposed class representatives do not “fairly and adequately protect the interests of the class” due to the representatives’ “abdication to counsel.” (Id. at 20.) Specifically, the Defendants assert that proposed representatives lack knowledge about the basis for the lawsuits, the representatives’ knowledge about the suits is solely derivative knowledge acquired from counsel, and the representatives had no input in drafting the complaint and took no steps to confirm that the allegations in the complaint were true. (Id. at 21.) The district courts which have imposed this requirement have recognized that the threshold for sufficient knowledge is not high. All that is necessary is a “rudimentary understanding of the present action and ... a demonstrated willingness to assist counsel in the prosecution of the litigation.” Thomas & Thomas, 209 F.R.D. at 165; see also In re THQ, Inc. Sec. Litig., 2002 WL 1832145, at *6 (“[U]nfamiliarity with the suit does not itself require denial of class certification.”). The" }, { "docid": "16866816", "title": "", "text": "factor alone combined with allegations of discrimination will not define a class. However, the plaintiffs have demonstrated that their allegations of discrimination have some basis in fact although certainly this observation may be negated at the trial of the merits. The claims of the class representatives are typical of those of the putative class, unlike the Falcon situation which involved applicants and employees. In the instant case, the representatives of the class all are black children in the public schools of Georgia who are presently attending classes in the defendant districts. Their claim is simply that black students, such as themselves, are overrepresented in certain types of regular classrooms and in EMR classrooms. And although the varying methods used for placement by each defendant district are relevant to the merits, their existence does not defeat a class certification motion. The problems presented in Falcon, i.e., that the class claims were not fairly encompassed by the named plaintiff’s claims, are not evident here. Another component of Rule 23(a)(4) involves an inquiry into the adequacy of representation which will be provided for the plaintiff class. Professor Miller has noted that an analysis of the adequacy of counsel is perhaps the “most abrasive and difficult aspect of the Rule 23(a)(4) analysis for a district judge.” A preeminent factor in the determination is the attorney’s experience in handling litigation of the type involved in the case. Other factors include the attorney’s motivation, competence, support personnel, and other professional commitments. In the case, four attorneys employed by the Georgia Legal Services Program represent the individual plaintiffs. A fifth attorney is representing the NAACP. Each of the five attorneys representing the plaintiffs in the instant case have substantial experience in federal civil rights litigation, as is evidenced by the affidavits submitted by these counsel in support of the motion for class certification. Plaintiffs’ counsel have vigorously, if not zealously, prosecuted the pending action which has included extensive discovery on the issue of class certification. Moreover, Georgia Legal Services Programs, Inc. has earmarked $114,000 for the prosecution of this action. Attorneys provided by a legal services organization" }, { "docid": "19027098", "title": "", "text": "defendants argue that the named plaintiffs seek abolition of the program for certification of foreign workers and that such abolition is contrary to the interests of many unnamed class members since the program assures that domestic farmworkers will be offered certain minimal employment conditions. Defendants also argue that the named plaintiffs lack the financial resources necessary to prosecute this litigation as a class action. Rule 23(a)(4) has been held to require that the proposed class representatives not have interests antagonistic to those of the unnamed class members and that the class representatives have procured counsel capable of conducting the proposed litigation. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968). Contrary to defendants’ arguments, the named plaintiffs in the instant action do not seek to advance interests contrary to those of unnamed class members. The record clearly demonstrates that the named plaintiffs are attempting to correct alleged violations of the laws governing certification of foreign migrant workers and do not seek the abolition of the program pursuant to which such workers are certified. With regard to the named plaintiffs’ ability to finance the class action litigation, plaintiffs have indicated that the cost of notice and other expenses incident to class certification can be advanced by the legal services programs which represent the named plaintiffs or which assist counsel for the named plaintiffs. Since plaintiffs remain ultimately liable for such costs and otherwise would not be able to maintain this action, the advance is permissible and, in this instance, satisfies the requirement that the interests of unnamed class members will be litigated adequately. See P.D.Q. Inc. of Miami v. Nissan Motor Corp., 61 F.R.D. 372, 379 (S.D.Fla.1973). (c) Common Questions of Law or Fact Rule 23(a)(2) requires that there be questions of law or fact common to the class members. In the instant case, it is evident that the section 1985(3) claims of the named plaintiffs and unnamed class members actually employed by the New York apple defendants present a number of common issues. The plaintiffs, in order to prevail on this claim, must prove that defendants conspired" } ]

[ { "docid": "445302", "title": "", "text": "Olivarez, 292 F.3d 939, 949 (9th Cir.2002). Under pre-AED-PA standards, and because Stankewitz did not receive an evidentiary hearing in state court, Stankewitz is entitled to an eviden-tiary hearing if he alleges facts that, if true, would entitle him to relief. See Williams v. Woodford, 306 F.3d 665, 684 (9th Cir.2002); Beaty v. Stewart, 303 F.3d 975, 993 (9th Cir.2002), cert. denied, 538 U.S. 1053, 123 S.Ct. 2073, 155 L.Ed.2d 1098 (2003). We review de novo the district court’s decision to deny Stankewitz’s § 2254 petition, Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003), and we review for abuse of discretion the court’s refusal to hold an evidentiary hearing, see Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir.1999). I. Wiggins and Williams In applying Strickland’s ineffective assistance standard to the penalty phase of Stankewitz’s trial, we are guided by two recent decisions in which the Supreme Court concluded that counsel was constitutionally ineffective for failing to investigate and present mitigating evidence. See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2544, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 394, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Applying the exacting AEDPA standards not applicable to Stankewitz’s ineffective assistance claim, the Court in Wiggins and Williams concluded that the defendants there had received ineffective assistance of counsel during the penalty phases of their trials. These two cases make clear that the presentation of mitigating evidence is vital even where, as here, the aggravating evidence is powerful. A. Wiggins Wiggins was convicted of first-degree murder for drowning a 77-year-old woman. Wiggins, 123 S.Ct. at 2531-32. At sentencing, counsel did not present any mitigating evidence, although one counsel told the jury that Wiggins had “had a difficult life,” had “tried to be a productive citizen” and had “reached the age of 27 with no convictions for prior crimes of violence and no convictions, period.” Id. at 2532. Counsel failed to present extremely persuasive evidence of Wiggins’ “bleak life history”: Wiggins’ mother was an' alcoholic and abusive to Wiggins and his siblings, and on one occasion placed Wiggins’ hand" } ]

[ { "docid": "3493728", "title": "", "text": "S.Ct. at 2466. As this court has also noted, when it comes to the penalty phase of a capital trial, “[i]t is imperative that all relevant mitigating information be unearthed for consideration.” Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.1999). We begin by considering what steps Landrigan’s counsel took in his investigation. See Wiggins, 539 U.S. at 522-23, 123 S.Ct. 2527 (court should first focus on whether the investigation is itself reasonable); Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (courts will defer to counsel’s choices, if made after conducting a reasonable investigation). 1. On the record before us, it appears that Landrigan’s counsel did little to prepare for the sentencing aspect of the case. He did obtain several medical documents indicating Landrigan had a long history of substance abuse and included this information in Defendant’s Sentencing Memorandum Concerning Mitigation. He also had a psychologist, Mickey McMahon, evaluate Landrigan to obtain an “initial impression,” but did not provide him with any relevant background information on Lan-drigan to assist in the evaluation. See, e.g., Clabourne v. Lewis, 64 F.3d 1373, 1385 (9th Cir.1995) (counsel ineffective for inadequately preparing psychologist). Although the psychologist recommended that he perform additional testing, Farrell would not authorize any follow-up tests. Dr. McMahon’s declaration describes his experience with Farrell as “quite different from the working relationship I had with counsel in other death penalty cases.” Landrigan’s counsel also hired an investigator, who spent a total of thirteen hours on the case, but none of this work was directed towards sentencing phase considerations. The investigator claims that he had very little interaction with counsel about the case and that he found this “quite frustrating.” Prior to the sentencing, Farrell also spoke briefly with two family members— Landrigan’s ex-wife and his birth mother. At the sentencing hearing, Farrell advised the court that he expected Landrigan’s ex-wife to verify Landrigan’s history of substance abuse; state that Landrigan had been a loving, caring husband; and explain the circumstances of one of Landrigan’s prior convictions. Farrell also proffered that Landrigan’s birth mother would testify about her drug and alcohol use during" }, { "docid": "23589478", "title": "", "text": "and Performance of Counsel in Death Penalty Cases, §§ 11.4.1(C), 11. 8.6 (1989) (emphasis omitted)); accord Rompilla v. Beard, 545 U.S. 374, 380-81, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). We evaluate counsel’s investigation under Strickland’s reasonableness standard, based on prevailing professional norms, such as those found in the ABA Standards for Criminal Justice. See Outten v. Kearney, 464 F.3d 401, 417 (3d Cir.2006). Applying these standards in Wiggins, the Supreme Court held that counsel’s decision not to expand his investigation of the defendant’s life history beyond the pre-sentence investigation report and Department of Social Services records fell short of prevailing professional standards. The Court reasoned that prevailing norms of practice as reflected in the 1989 ABA standards were guides to determining what is reasonable, 539 U.S. at 522, 123 S.Ct. 2527, and the pre-sentence report and records provided valuable leads that counsel unreasonably ignored: “[A]ny reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice,” particularly given the absence of prior convictions or other negative information (such as a history of violence) in Wiggins’s background. Id. at 525, 123 S.Ct. 2527. Similarly, the Supreme Court held in Rompilla, 545 U.S. 374, 125 S.Ct. 2456, that “even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.” Id. at 377, 125 S.Ct. 2456. In Rompilla, further effort on counsel’s part would have unearthed school, medical, and prison records showing severe psychological deficits and evidence of a highly abusive home life. Id. at 390-93, 125 S.Ct. 2456. The Supreme Court, however, recently distinguished Wiggins and Rompilla, in the situation in which a defendant prevents his attorney from presenting mitigating evidence. See Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1942, 167 L.Ed.2d 836 (2007). The defendant in Landrigan, Jeffrey Landrigan, was convicted of first degree murder. His counsel had two witnesses prepared to" }, { "docid": "3493749", "title": "", "text": "to Landrigan's 1990 trial. Id. at 514-15, 123 S.Ct. 2527. Therefore, the Court’s reasoning in Wiggins is fully applicable to Landrigan’s case. . The dissent seizes upon Landrigan’s expert’s diagnosis of antisocial personality disorder and analyzes whether such a disorder is sufficient to justify mitigation. [Dissent at 651]. Yet this diagnosis is only a small piece of the puzzle; the crux of Landrigan's argument is that the sentencing judge was never apprised of the full panoply of circumstances that, in the expert's opinion, converged to result in \"disordered behavior [that] was beyond the control of Mr. Landrigan.’’ The dissent also suggests that Landrigan’s trial behavior would have negated any attempt to elicit sympathy [Dissent at 652-53], yet Landrigan contends this behavior was consistent with the expert's analysis of limited impulse control and an inability to take into account the consequences of his behavior. Indeed, if Landri-gan’s counsel had offered such mental health information, it could have actually explained his courtroom behavior and tempered its effect. . We adopt the panel's holdings with respect to the additional sentencing issues raised in Landrigan’s certificate of appealability. 272 F.3d at 1229-31. BEA, Circuit Judge, with whom Circuit Judge Callahan joins, dissenting: Although I agree with the majority’s conclusion that counsel’s limited investigation of Landrigan’s background fell below the standards of professional representation prevailing in 1990,1 would not remand this case for an evidentiary hearing because Landrigan has failed to allege facts that, if proven, would demonstrate Strickland prejudice. We “review de novo [a] district court’s interpretation of AEDPA standards governing the grant or denial of an evidentia-ry hearing.” Earp, 431 F.3d at 1166. We may reverse the denial of an evidentiary hearing only if the district court abused its discretion. Id. To establish entitlement to an evidentia-ry hearing, Landrigan must demonstrate an objectively reasonable probability that, had counsel proved the mitigating facts now alleged, the sentencing judge would not have imposed the death penalty. See Summerlin, 427 F.3d at 643. Landrigan alleges that his birth mother exposed him to alcohol and drugs in útero and later abandoned him, that he has a genetic" }, { "docid": "3493727", "title": "", "text": "such circumstances, Landrigan is entitled to an evidentiary hearing if he can establish a “colorable claim” for relief. See Earp, 431 F.3d at 1173. II. The Sixth Amendment right to effective assistance of counsel extends to the sentencing phase of a capital case. Silva v. Woodford, 279 F.3d 825, 836 (9th Cir.2002). We analyze Landrigan’s claim that he was deprived of this right pursuant to the standards set forth by the Supreme Court in Strickland: Landrigan must demonstrate that his counsel’s representation “fell below an objective standard of reasonableness” and that there is a reasonable probability that counsel’s unprofessional errors “undermine confidence in the outcome of the proceeding.” 466 U.S. at 688, 694, 104 S.Ct. 2052. A. According to the prevailing standards at the time of Landrigan’s sentencing, counsel had an obligation to conduct a thorough investigation of the defendant’s background. See Terry Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“T.Williams ”) (citing 1 ABA Standards for Criminal Justice 4-4.1, cmt. at p. 4-55 (2d ed.1980)); Rompilla, 125 S.Ct. at 2466. As this court has also noted, when it comes to the penalty phase of a capital trial, “[i]t is imperative that all relevant mitigating information be unearthed for consideration.” Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.1999). We begin by considering what steps Landrigan’s counsel took in his investigation. See Wiggins, 539 U.S. at 522-23, 123 S.Ct. 2527 (court should first focus on whether the investigation is itself reasonable); Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (courts will defer to counsel’s choices, if made after conducting a reasonable investigation). 1. On the record before us, it appears that Landrigan’s counsel did little to prepare for the sentencing aspect of the case. He did obtain several medical documents indicating Landrigan had a long history of substance abuse and included this information in Defendant’s Sentencing Memorandum Concerning Mitigation. He also had a psychologist, Mickey McMahon, evaluate Landrigan to obtain an “initial impression,” but did not provide him with any relevant background information on Lan-drigan to assist in the evaluation. See, e.g., Clabourne" }, { "docid": "4392094", "title": "", "text": "mood disorder with bipolar features. He asserts that the factual basis for such a diagnosis — a “history of mood swings, aberrant behavior, and psychiatric treatment” — “was well-documented and readily available to trial counsel.” In his youth, Crittenden had been prescribed and responded well to lithium, a standard treatment for an organic mood disorder with bipolar features. According to Dr. Woods, its “manifestations” were “readily apparent for many years” and should have been “easily discernable from a review of [Crittenden’s] medical and social history.” An adequate mitigation investigation would, Crittenden argues, have enabled his psychiatric experts to make that diagnosis before the penalty phase began. The California Supreme Court’s rejection of this claim was not an objectively unreasonable application of clearly established federal law. Trial counsel’s performance in the penalty phase is assessed using the “same ‘clearly established’ precedent of Strickland ” that applies to all IAC claims. Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In preparing for the sentencing phase of a capital trial, it is imperative that trial counsel undertake a diligent investigation into all reasonably available mitigating information. See Porter v. McCollum, — U.S. -, 130 S.Ct. 447, 452-53, 175 L.Ed.2d 398 (2009) (per curiam); Rompilla v. Beard, 545 U.S. 374, 380-81, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins, 539 U.S. at 524, 123 S.Ct. 2527; Summerlin v. Schriro, 427 F.3d 623, 630-31 (9th Cir.2005) (en banc) (describing the “minimal type of ‘objectively reasonable’ investigation any competent capital defense attorney should conduct in preparing a penalty phase defense”). Counsel must conduct “reasonable investigations or ... make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. The investigation supporting counsel’s decision to stop investigating must itself be reasonable, see Wiggins, 539 U.S. at 523, 123 S.Ct. 2527; Stankewitz, 365 F.3d at 719, “evaluating] the conduct from counsel’s perspective at the time,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In addition to the mental health experts already consulted (Drs. Kaldor, Erickson, Seals, Bittle and Dublin), Crittenden’s trial counsel retained Dr. Daniel Edwards," }, { "docid": "3493741", "title": "", "text": "respect to continuing or abandoning further liti gation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Summerlin, 427 F.3d at 639 (quoting Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966)). The trial court’s cursory inquiry into Landrigan’s purported waiver of all mitigating evidence did not satisfy this requirement. For all of the foregoing reasons, Landri-gan has not waived the right to assert a claim for ineffective assistance of counsel. Moreover, Landrigan has alleged facts that, if true, would establish that his counsel was ineffective for failing to investigate and discover important mitigating evidence. This alone, however, would not entitle Landrigan to habeas relief or even to an evidentiary hearing. We therefore turn to the issue of prejudice. B. To establish prejudice, Landrigan must demonstrate a reasonable probability that Farrell’s deficiencies “undermine confidence in the outcome” of the proceeding. Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”) To assess prejudice in a capital penalty phase proceeding, the Supreme Court has directed us to “reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. That evidence includes both the evidence adduced at trial and the evidence adduced in habeas proceedings. See id. at 536, 123 S.Ct. 2527; T. Williams, 529 U.S. at 397-98, 120 S.Ct. 1495. In evaluating prejudice, the district court improperly refused to consider additional facts proffered by Landrigan, such as expert testimony regarding Landrigan’s organic brain dysfunction, because the court erroneously concluded that Landrigan had failed to exhaust this claim in state court. In state court, Landrigan asserted that his counsel was ineffective because Farrell had failed to undertake a reasonable investigation of mitigating factors, including information that could have been derived from Landri-gan’s biological father and his adoptive sister. Landrigan summarized his claim as follows: Where a defendant’s crime is attributable to a disadvantaged background or emotional or mental problems the defendant" }, { "docid": "3493721", "title": "", "text": "HAWKINS, Circuit Judge. In this appeal, we consider whether petitioner, Jeffrey Timothy Landrigan, received ineffective assistance of counsel in the penalty phase of his capital murder trial. We conclude Landrigan has raised a colorable claim that his counsel’s performance fell below the objective standard of reasonableness required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that he was prejudiced by these errors. We therefore remand to the district court to conduct an evidentiary hearing on Landrigan’s claim. BACKGROUND In 1989, Landrigan escaped from an Oklahoma prison and soon thereafter murdered Chester Dean Dyer in Arizona. He was convicted of first degree murder in Arizona state court and sentenced to death. The Arizona Supreme Court affirmed his conviction and sentence. Arizona v. Landrigan, 176 Ariz. 1, 8, 859 P.2d 111 (1993). Landrigan filed a petition for post-conviction relief in the Arizona Superior Court, urging that his counsel, ' Dennis Farrell, had been ineffective by failing to investigate and present mitigating evidence at the sentencing proceeding. Lan-drigan also requested an evidentiary hearing in connection with this claim. The Superior Court denied the request for the hearing and the petition, concluding that Landrigan could not argue his counsel was ineffective at sentencing because he had instructed his attorney not to present mitigating evidence. The Arizona Supreme Court summarily denied the petition. Landrigan thereafter filed a petition for writ of habeas corpus in federal district court raising a number of claims, including ineffective assistance of counsel. Landri-gan sought to expand the record to include declarations by mental health experts and persons familiar with Landrigan’s background, and the district court granted this request in part. Landrigan also sought an evidentiary hearing, but the district court denied this request and also denied the petition on the merits. The district court concluded that even if Landrigan’s counsel was deficient, Landrigan had not demonstrated he suffered prejudice from his counsel’s shortcomings. Landrigan appealed to this court. The district court granted Landrigan a certificate of appealability on several claims, including whether “Landrigan’s trial counsel was ineffective at sentencing, depriving Landrigan of his" }, { "docid": "3493747", "title": "", "text": "reasonable probability that, if Landrigan’s allegations are true, the sentencing judge would have reached a different conclusion. III. Of course, to this point, Landrigan’s evidence has not been tested. Farrell has not been given an opportunity to explain what steps were taken in his investigation or why he did not do more; Landrigan’s accounts of his childhood have not been explored; and the state has not had an opportunity to cross-examine his experts or challenge the strength of their opinions. We note this only to emphasize that we are not opining on what the district court’s ultimate resolution of this issue should be; we conclude only that Landrigan has surpassed the relatively “low bar” of alleging a colorable claim for relief. Earp, 431 F.3d at 1170. We conclude Landrigan has alleged facts that, if demonstrated to be true, present a colorable claim that he received ineffective assistance of counsel in his capital sentencing proceeding. Landrigan has demonstrated a proper basis for an eviden-tiary hearing. AFFIRMED in part, REVERSED in part, and REMANDED for an evidentiary hearing. . For a more detailed description of the crime and state court proceedings, see Landrigan, 176 Ariz. at 3-4, 859 P.2d 111. . We initially heard argument in March 2005, but deferred submission pending this court’s en banc decision in Summerlin v. Schriro, 427 F.3d 623 (9th Cir.2005) (en banc). . See Summerlin, 427 F.3d at 637-39 (spontaneous objection to presentation of one witness does not excuse failure to present penalty phase defense); Stankewitz v. Woodford, 365 F.3d 706, 721-22 (9th Cir.2004) (opposition to calling family members or experts as witnesses does not excuse an attorney from interviewing experts and family members to obtain mitigating evidence). . Although Wiggins is a recent Supreme Court case, it applied the familiar Strickland inquiry applicable to ineffective assistance claims in a post-AEDPA case. Indeed, the Court in Wiggins expressly stated that the case presented the same issue as in Strickland and that it was applying the \"clearly established precedent of Strickland.\" 539 U.S. at 521, 123 S.Ct. 2527. Wiggins’s trial took place in 1989, one year prior" }, { "docid": "6238252", "title": "", "text": "Moreover, as noted above, a federal court’s § 2254(d)(1) review is based solely on the record before the state court that adjudicated the claim on the merits. See Pinholster, 563 U.S. at —, 131 S.Ct. at 1399. Similarly, under § 2254(d)(2), “[t]he question ... is not whether the federal court believes the state court’s decision was incorrect but whether the determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). “[T]he Supreme Court has found state factual findings unreasonable under § 2254(d)(2) when the direction of the evidence, viewed cumulatively, was too powerful to conclude anything but [the petitioner’s factual claim] ... and when a state court’s finding was clearly erroneous.” Landers v. Warden, 776 F.3d 1288, 1294 (11th Cir.2015) (internal quotations omitted). In accordance with Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), we consider the reasonableness of the state habeas court’s factual determinations separately with respect to each of Strickland’s prongs. Id. at 534, 123 S.Ct. at 2542. Consequently, “it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.” Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir.2011). In the “rare case” a petitioner meets this high standard, we conduct a de novo review, without deference to the state court’s decision. Jones v. Walker, 540 F.3d 1277, 1288 (11th Cir.2008) (en banc). A. We begin with Strickland’s performance prong. The state habeas court held that French “failed to establish that counsel was in any way deficient or unreasonable in his representation,” citing the attorney’s general testimony that he “did ‘all the customary things’ that he felt one should do in a case of such nature.... He testified that ultimately the case was fully investigated, comprehensive, and prepared for trial.” French contends that this conclusion was based on an unreasonable determination of the facts because the attorney’s failure to proffer evidence of the false kidnapping" }, { "docid": "3493740", "title": "", "text": "an attorney to advise a client of the prospects of success or the potential consequences of failing to present mitigating evidence when the attorney does not know that such evidence exists.” Douglas v. Woodford, 316 F.3d 1079, 1089 (9th Cir.2003); see also Stankewitz, 365 F.3d at 722 (petitioner’s objection to mitigating evidence apparently not “informed and knowing” because counsel did not conduct an adequate investigation). The trial court’s dialogue with Landrigan tells us little about his understanding of the consequences of his decision: After asking whether Landrigan had instructed his attorney not to present mitigating circumstances, the court asked only, “Do you know what that means?” Landrigan simply responded, “Yeah.” There was no further exploration by the court into Landri-gan’s understanding, or what advice his attorney had given him outside of court. As we recently explained: If a client has elected to forego legal proceedings that could avert the imposition of the death penalty, then a court must make the determination “whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further liti gation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Summerlin, 427 F.3d at 639 (quoting Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966)). The trial court’s cursory inquiry into Landrigan’s purported waiver of all mitigating evidence did not satisfy this requirement. For all of the foregoing reasons, Landri-gan has not waived the right to assert a claim for ineffective assistance of counsel. Moreover, Landrigan has alleged facts that, if true, would establish that his counsel was ineffective for failing to investigate and discover important mitigating evidence. This alone, however, would not entitle Landrigan to habeas relief or even to an evidentiary hearing. We therefore turn to the issue of prejudice. B. To establish prejudice, Landrigan must demonstrate a reasonable probability that Farrell’s deficiencies “undermine confidence in the outcome” of the proceeding. Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (“A reasonable probability is a probability" }, { "docid": "23589479", "title": "", "text": "as a history of violence) in Wiggins’s background. Id. at 525, 123 S.Ct. 2527. Similarly, the Supreme Court held in Rompilla, 545 U.S. 374, 125 S.Ct. 2456, that “even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.” Id. at 377, 125 S.Ct. 2456. In Rompilla, further effort on counsel’s part would have unearthed school, medical, and prison records showing severe psychological deficits and evidence of a highly abusive home life. Id. at 390-93, 125 S.Ct. 2456. The Supreme Court, however, recently distinguished Wiggins and Rompilla, in the situation in which a defendant prevents his attorney from presenting mitigating evidence. See Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1942, 167 L.Ed.2d 836 (2007). The defendant in Landrigan, Jeffrey Landrigan, was convicted of first degree murder. His counsel had two witnesses prepared to testify at the penalty phase (Landrigan’s mother and his ex-wife), but Landrigan asked them not to testify. Id. at 1937. In addition to his instructions to counsel, Landri-gan had several outbursts in open court opposing counsel’s presentation of mitigation evidence. Id. at 1937-38. For example, when counsel attempted to explain some of the state’s aggravating evidence in a more mitigating light, Landrigan verbally attacked counsel, and made comments that made the state’s aggravating evidence sound even worse than the state’s presentation. Id. at 1938, 1941. When the trial judge asked Landrigan if he had instructed his lawyer not to present mitigating evidence, Landrigan responded affirmatively. Id. at 1941. And when the court asked whether there were mitigating circumstances it should be aware of, Landri-gan replied, “Not as far as I’m concerned.” Id. Despite his recalcitrance at trial, Lan-drigan later filed a federal habeas petition alleging, among other things, ineffective assistance of counsel for failure to investigate and present mitigation. The Supreme Court reversed the Ninth Circuit’s grant of habeas relief because (1) the state courts’" }, { "docid": "3493722", "title": "", "text": "evidentiary hearing in connection with this claim. The Superior Court denied the request for the hearing and the petition, concluding that Landrigan could not argue his counsel was ineffective at sentencing because he had instructed his attorney not to present mitigating evidence. The Arizona Supreme Court summarily denied the petition. Landrigan thereafter filed a petition for writ of habeas corpus in federal district court raising a number of claims, including ineffective assistance of counsel. Landri-gan sought to expand the record to include declarations by mental health experts and persons familiar with Landrigan’s background, and the district court granted this request in part. Landrigan also sought an evidentiary hearing, but the district court denied this request and also denied the petition on the merits. The district court concluded that even if Landrigan’s counsel was deficient, Landrigan had not demonstrated he suffered prejudice from his counsel’s shortcomings. Landrigan appealed to this court. The district court granted Landrigan a certificate of appealability on several claims, including whether “Landrigan’s trial counsel was ineffective at sentencing, depriving Landrigan of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.” A three-judge panel affirmed the district court’s denial of the writ. Landrigan v. Stewart, 272 F.3d 1221, 1223 (9th Cir.2001). We granted rehearing en banc. Landrigan v. Stewart, 397 F.3d 1235 (9th Cir.2005). Since the district court’s 1999 denial of the writ and Landrigan’s request for an evidentiary hearing and the filing of our now withdrawn panel opinion on November 28, 2001, the Supreme Court has issued a number of significant decisions regarding ineffective assistance of counsel claims. The Court has clarified the duty of an attorney to develop and present mitigating evidence, even when dealing with capital defendants who are “uninterested in helping” or “even actively obstructive” in developing a mitigation case, Rompilla v. Beard, — U.S.-,---, 125 S.Ct. 2456, 2462-63, 162 L.Ed.2d 360 (2005), and also has elaborated on the appropriate measure of prejudice in a capital penalty phase proceeding, see Wiggins v. Smith, 539 U.S. 510, 534-38, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Viewing Landrigan’s claim in light of these precedents, we" }, { "docid": "3493742", "title": "", "text": "sufficient to undermine confidence in the outcome.”) To assess prejudice in a capital penalty phase proceeding, the Supreme Court has directed us to “reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. That evidence includes both the evidence adduced at trial and the evidence adduced in habeas proceedings. See id. at 536, 123 S.Ct. 2527; T. Williams, 529 U.S. at 397-98, 120 S.Ct. 1495. In evaluating prejudice, the district court improperly refused to consider additional facts proffered by Landrigan, such as expert testimony regarding Landrigan’s organic brain dysfunction, because the court erroneously concluded that Landrigan had failed to exhaust this claim in state court. In state court, Landrigan asserted that his counsel was ineffective because Farrell had failed to undertake a reasonable investigation of mitigating factors, including information that could have been derived from Landri-gan’s biological father and his adoptive sister. Landrigan summarized his claim as follows: Where a defendant’s crime is attributable to a disadvantaged background or emotional or mental problems the defendant is less culpable than one without the excuse. California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring). See also, State v. Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986 (1989), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990). Due to ineffective assistance from trial counsel at sentencing, this Honorable Court did not have a complete and accurate picture of Petitioner’s background. The additional information offered by Lan-drigan in support of his federal habeas claim does not “fundamentally alter” the ineffective assistance claim presented to the state court. It simply provides additional evidentiary support for the claim, in particular with respect to the prejudice prong of Strickland. See Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); see also Belmontes v. Brown, 414 F.3d 1094, 1117-18 (9th Cir.2005) (“[N]ew factual allegations do not render a claim unexhausted unless they fundamentally alter the legal claim already considered by the state courts.” (quoting Chacon v. Wood, 36 F.3d 1459, 1468" }, { "docid": "22757873", "title": "", "text": "precedent.” 441 F. 3d, at 647 (citing 28 U. S. C. § 2254(d)(1)). This holding was founded on the belief, derived from Wiggins v. Smith, 539 U. S. 510 (2003), that “Landrigan’s apparently last-minute decision cannot excuse his counsel’s failure to conduct an adequate investigation prior to the sentencing.” 441 F. 3d, at 647. Neither Wiggins nor Strickland addresses a situation in which a client interferes with counsel’s efforts to present mitigating evidence to a sentencing court. Wiggins, supra, at 523 (“[W]e focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable” (emphasis added and deleted)). Indeed, we have never addressed a situation like this. In Rompilla v. Beard, 545 U. S. 374, 381 (2005), on which the Court of Appeals also relied, the defendant refused to assist in the development of a mitigation case, but did not inform the court that he did not want mitigating evidence presented. In short, at the time of the Arizona post-conviction court’s decision, it was not objectively unreasonable for that court to conclude that a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counsel’s failure to investigate further possible mitigating evidence. 2 The Court of Appeals also stated that the record does not indicate that Landrigan’s decision not to present mitigating evidence was “informed and knowing,” 441 F. 3d, at 647, and that “[t]he trial court’s dialogue with Landrigan tells us little about his understanding of the consequences of his decision,” ibid. We have never imposed an “informed and knowing” requirement upon a defendant’s decision not to introduce evidence. Cf., e. g., Iowa v. Tovar, 541 U. S. 77, 88 (2004) (explaining that waiver of the right to counsel must be knowing and intelligent). Even assuming, however, that an “informed and knowing” requirement exists in this case, Landrigan cannot benefit from it, for three reasons. First, Landrigan never presented this claim to the Arizona courts. Rather, he argued that he would have complied had other evidence been offered. Thus, Landrigan failed to develop" }, { "docid": "22757881", "title": "", "text": "an evidentiary hearing, this is pure guesswork. The Court’s decision rests on a parsimonious appraisal of a capital defendant’s constitutional right to have the sentencing decision reflect meaningful consideration of all relevant mitigating evidence, see, e. g., Abdul-Kabir v. Quarterman, ante, p. 233; Skipper v. South Carolina, 476 U. S. 1 (1986); Lockett v. Ohio, 438 U. S. 586 (1978), a begrudging appreciation of the need for a knowing and intelligent waiver of constitutionally protected trial rights, see, e. g., Schneckloth v. Bustamonte, 412 U. S. 218 (1973); Johnson v. Zerbst, 304 U. S. 458 (1938), and a cramped reading of the record. Unlike this Court, the en banc Court of Appeals properly accounted for these important constitutional and factual considerations. Its narrow holding that the District Court abused its discretion in denying respondent an evidentiary hearing should be affirmed. See Townsend v. Sain, 372 U. S. 293, 312, 318 (1963); see also 28 U. S. C. §2254 Rule 8(a) (2000 ed., Supp. IV). I No one, not even the Court, seriously contends that counsel’s investigation of possible mitigating evidence was constitutionally sufficient. See Wiggins, 539 U. S., at 521; Strickland v. Washington, 466 U. S. 668, 688 (1984). Indeed, both the majority and dissenting judges on the en banc Court of Appeals agreed that “counsel’s limited investigation of Landrigan’s background fell below the standards of professional representation prevailing” at the time of his sentencing hearing. 441 F. 3d 638, 650 (CA9 2006) (Bea, J., dissenting); see id., at 643-645 (“On the record before us, it appears that Landrigan’s counsel did little to prepare for the sentencing aspect of the case. ... A comparison of the results of the minimal investigation by [counsel] with the amount of available mitigating evidence Landrigan claims was available leaves us with grave doubts whether Landrigan received effective assistance of counsel during his penalty phase proceeding”). The list of evidence that counsel failed to investigate is long. For instance, counsel did not complete a psychological evaluation of respondent, which we now know would have uncovered a serious organic brain disorder. He failed to consult an" }, { "docid": "3493748", "title": "", "text": "hearing. . For a more detailed description of the crime and state court proceedings, see Landrigan, 176 Ariz. at 3-4, 859 P.2d 111. . We initially heard argument in March 2005, but deferred submission pending this court’s en banc decision in Summerlin v. Schriro, 427 F.3d 623 (9th Cir.2005) (en banc). . See Summerlin, 427 F.3d at 637-39 (spontaneous objection to presentation of one witness does not excuse failure to present penalty phase defense); Stankewitz v. Woodford, 365 F.3d 706, 721-22 (9th Cir.2004) (opposition to calling family members or experts as witnesses does not excuse an attorney from interviewing experts and family members to obtain mitigating evidence). . Although Wiggins is a recent Supreme Court case, it applied the familiar Strickland inquiry applicable to ineffective assistance claims in a post-AEDPA case. Indeed, the Court in Wiggins expressly stated that the case presented the same issue as in Strickland and that it was applying the \"clearly established precedent of Strickland.\" 539 U.S. at 521, 123 S.Ct. 2527. Wiggins’s trial took place in 1989, one year prior to Landrigan's 1990 trial. Id. at 514-15, 123 S.Ct. 2527. Therefore, the Court’s reasoning in Wiggins is fully applicable to Landrigan’s case. . The dissent seizes upon Landrigan’s expert’s diagnosis of antisocial personality disorder and analyzes whether such a disorder is sufficient to justify mitigation. [Dissent at 651]. Yet this diagnosis is only a small piece of the puzzle; the crux of Landrigan's argument is that the sentencing judge was never apprised of the full panoply of circumstances that, in the expert's opinion, converged to result in \"disordered behavior [that] was beyond the control of Mr. Landrigan.’’ The dissent also suggests that Landrigan’s trial behavior would have negated any attempt to elicit sympathy [Dissent at 652-53], yet Landrigan contends this behavior was consistent with the expert's analysis of limited impulse control and an inability to take into account the consequences of his behavior. Indeed, if Landri-gan’s counsel had offered such mental health information, it could have actually explained his courtroom behavior and tempered its effect. . We adopt the panel's holdings with respect to the" }, { "docid": "22757872", "title": "", "text": "to bring any mitigation to the attention of the [sentencing] court,” App. to Pet. for Cert. F-4, it was not an abuse of discretion for the District Court to conclude that Landrigan could not overcome § 2254(d)(2)’s bar to granting federal habeas relief. The District Court was entitled to conclude that regardless of what information counsel might have uncovered in his investigation, Landrigan would have interrupted and refused to allow his counsel to present any such evidence. Accordingly, the District Court could conclude that because of his established recalcitrance, Landrigan could not demonstrate prejudice under Strickland even if granted an evidentiary hearing. B The Court of Appeals offered two alternative reasons for holding that Landrigan’s inability to make a showing of prej udice under Strickland did not bar any potential habeas relief and, thus, an evidentiary hearing. 1 The Court of Appeals held that, even if Landrigan did not want any mitigating evidence presented, the Arizona courts’ determination that Landrigan’s claims were “ ‘frivolous’ and ‘meritless’ was an unreasonable application of United States Supreme Court precedent.” 441 F. 3d, at 647 (citing 28 U. S. C. § 2254(d)(1)). This holding was founded on the belief, derived from Wiggins v. Smith, 539 U. S. 510 (2003), that “Landrigan’s apparently last-minute decision cannot excuse his counsel’s failure to conduct an adequate investigation prior to the sentencing.” 441 F. 3d, at 647. Neither Wiggins nor Strickland addresses a situation in which a client interferes with counsel’s efforts to present mitigating evidence to a sentencing court. Wiggins, supra, at 523 (“[W]e focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable” (emphasis added and deleted)). Indeed, we have never addressed a situation like this. In Rompilla v. Beard, 545 U. S. 374, 381 (2005), on which the Court of Appeals also relied, the defendant refused to assist in the development of a mitigation case, but did not inform the court that he did not want mitigating evidence presented. In short, at the time of the Arizona post-conviction court’s decision, it was not objectively unreasonable for" }, { "docid": "11838506", "title": "", "text": "particular decision not to investigate must be directly assessed for reasonableness in all the circumstances .... Id. at 690-91, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). Similarly, a decision not to present a particular defense or not to offer particular mitigating evidence is unreasonable unless counsel has explored the issue sufficiently to discover the facts that might be relevant to his making an informed decision. Wiggins, 539 U.S. at 522-23, 123 S.Ct. 2527; Stankewitz v. Woodford, 365 F.3d 706, 719 (9th Cir.2004). Although the Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that ‘the proper measure of attorney performance remains simply reasonableness under prevailing professional norms,’ ” Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052), “general principles have emerged regarding the duties of criminal defense attorneys that inform our view as to the ‘objective standard of reasonableness’ by which we assess attorney performance, particularly with respect to the duty to investigate,” Summerlin, 427 F.3d at 629. Specifically, we have held that “ ‘[t]o perform effectively ... counsel must conduct sufficient investigation and engage in sufficient preparation to be able to ‘presentí ] and explain[ ]’ the significance of all the available [mitigating] evidence.’ ” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.2005) (citing Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.2001) (en banc)); see also Summerlin, 427 F.3d at 630. Indeed, “ ‘it is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase.’ ” Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir.1999) (quoting Caro, 165 F.3d 1223, 1227 (9th Cir.1999)). Accordingly, attorneys representing defendants in capital sentencing proceedings have “an ‘obligation to conduct a thorough investigation of [the defendant’s] background.’ ” Mayfield, 270 F.3d at 927. They also have a “ ‘duty to investigate and present mitigating evidence of mental impairment’ ... [,] [which] includes examination of mental health records.” Summerlin, 427 F.3d" }, { "docid": "3493723", "title": "", "text": "rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.” A three-judge panel affirmed the district court’s denial of the writ. Landrigan v. Stewart, 272 F.3d 1221, 1223 (9th Cir.2001). We granted rehearing en banc. Landrigan v. Stewart, 397 F.3d 1235 (9th Cir.2005). Since the district court’s 1999 denial of the writ and Landrigan’s request for an evidentiary hearing and the filing of our now withdrawn panel opinion on November 28, 2001, the Supreme Court has issued a number of significant decisions regarding ineffective assistance of counsel claims. The Court has clarified the duty of an attorney to develop and present mitigating evidence, even when dealing with capital defendants who are “uninterested in helping” or “even actively obstructive” in developing a mitigation case, Rompilla v. Beard, — U.S.-,---, 125 S.Ct. 2456, 2462-63, 162 L.Ed.2d 360 (2005), and also has elaborated on the appropriate measure of prejudice in a capital penalty phase proceeding, see Wiggins v. Smith, 539 U.S. 510, 534-38, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Viewing Landrigan’s claim in light of these precedents, we find that Landrigan has made a colorable claim that he did not receive effective assistance of counsel in his sentencing. We therefore remand to the district court to conduct an evidentiary hearing. I. We review the district court’s decision to deny habeas corpus relief de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000). Because Landrigan filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). Under AEDPA, Landrigan is entitled to a writ if the state court’s denial of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Id. The district court’s decision to deny an evidentiary hearing is reviewed for an abuse of discretion. See Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005). Under AEDPA, if a petitioner fails to develop in state court the factual basis for" }, { "docid": "19526658", "title": "", "text": "an evidentiary hearing, would entitle him to habeas relief.\" Insyxiengmay , 403 F.3d at 670 ; see also Quezada v. Scribner , 611 F.3d 1165, 1166-67 (9th Cir. 2010) (order). The Supreme Court has held that a failure to investigate and present mitigating evidence of childhood abuse and trauma may constitute ineffective assistance of counsel. Sears v. Upton , 561 U.S. 945, 948, 956, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010) (per curiam); Wiggins v. Smith , 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). To determine whether that is the case here, we turn again to Strickland . Reviewing the matter de novo , we conclude that Williams has alleged a colorable claim that O'Neill rendered deficient performance and that Williams suffered prejudice as a result. a. Deficient Performance We begin with Strickland 's deficient performance prong. It is instructive to consult \"[r]estatements of professional standards\" that \"describe the professional norms prevailing when the representation took place.\" Bobby v. Van Hook , 558 U.S. 4, 7, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009) (per curiam). The ABA Standards for Criminal Justice applicable at the time of Williams' trial explained that defense counsel has \"a substantial and important role to perform in raising mitigating factors,\" and that \"[i]nformation concerning the defendant's background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant.\" ABA Standards for Criminal Justice 4-4.1, p. 4-55 (2d ed. 1980). We have explained that \"the investigation should include inquiries into social background and evidence of family abuse.\" Summerlin v. Schriro , 427 F.3d 623, 630 (9th Cir. 2005) (en banc). Counsel's obligation \"to cast a wide net for all relevant mitigating evidence\" is at its height during the penalty phase of a capital case. Frierson v. Woodford , 463 F.3d 982, 989 (9th Cir. 2006). Assessed against these standards, Williams has alleged a colorable claim that O'Neill's failure to uncover evidence of Williams' childhood abuse and trauma constitutes deficient performance. \"[T]he presence of certain elements in a capital defendant's background, such as a family history of alcoholism, abuse, and" } ]

[ { "docid": "22661903", "title": "", "text": "Justice Stevens delivered the opinion of the Court. In Anders v. California, 386 U. S. 738 (1967), we gave a negative answer to this question: “May a State appellate court refuse to provide counsel to brief and argue an indigent criminal defendant’s first appeal as of right on the basis of a conclusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief?” Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 2. The question presented by this case is remarkably similar and therefore requires a similar answer. I Petitioner is indigent. After a trial in the Montgomery County, Ohio, Court of Common Pleas, he and two codefendants were found guilty of several serious crimes. Petitioner was sentenced to a term of imprisonment of 18 to 28 years. On January 8, 1985, new counsel was appointed to represent him on appeal. Counsel filed a timely notice of appeal. On June 2, 1986, petitioner’s appellate counsel filed with the Montgomery County, Ohio, Court of Appeals a document captioned “Certification of Meritless Appeal and Motion.” Excluding this caption and the certificate evidencing its serv ice on the prosecutor’s office and petitioner, the document in its entirety read as follows: “Appellant’s attorney respectfully certifies to the Court that he has carefully reviewed the within record on appeal, that he has found no errors requiring reversal, modification and/or vacation of appellant’s jury trial convictions and/or the trial court’s sentence in Case No. 84-CR-1056, that he has found no errors requiring reversal, modification and/or vacation of appellant’s jury trial convictions and/or the trial court’s sentence in Case No. 84-CR-1401, and that he will not file a meritless appeal in this matter. “MOTION “Appellant’s attorney respectfully requests a Journal Entry permitting him to withdraw as appellant’s appellate attorney of record in this appeal thereby relieving appellant’s attorney of any further responsibility to prosecute this appeal with the attorney/client relationship terminated effective on the date file-stamped on this Motion.” App. 35-36. A week later, the Court of Appeals entered an order allowing appellate" } ]

[ { "docid": "22604664", "title": "", "text": "from 151 to 188 months. On January 11, 2005, Mr. Calderon was sentenced to 151 months of confinement, to be followed by 60 months of supervised release. On appeal, Attorney Breeze filed a brief pursuant to Anders and moved to withdraw as counsel. Attorney Breeze provided the Anders brief to both the court and his client. In the Anders brief, Attorney Breeze argues that Mr. Calderon waived his right to appeal his sentence and therefore his appeal is wholly frivolous. Attorney Breeze also notes that “[Mr. Calderon] could argue that he should be able to appeal his 151-month sentence and ... the denial of his motion to suppress,” id., with out developing these potential arguments. After receiving the Anders brief, Mr. Calderon submitted a response (entitled “Pro Se Opening Brief of Appellant”), raising several arguments to the Court. Mr. Calderon’s arguments can be summarized as follows: (1) The Controlled Substances Act, 21 U.S.C. § 801 et seq., violates the Commerce Clause; (2) Mr. Calderon was denied the effective assistance of counsel; and (3) The Supreme Court’s recent decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) rendered void any sentence imposed under the Federal Sentencing Guidelines. On July 27, 2005, this Court requested that the government either file a brief in this case or state its intention to not do so. On August 1, the government notified the Court via letter that it did not intend to submit a brief in this matter, on the ground that the issues raised are frivolous. The government did not mention or rely on Mr. Calderon’s appeal waiver in the plea agreement. Nor did the government file a motion to enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.2004). DISCUSSION The Supreme Court’s decision in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Id. at 744, 87 S.Ct. 1396. Under Anders, counsel must submit" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "16082685", "title": "", "text": "with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(b)(1)(D); (2) conspiracy to commit the same, in violation of 18 U.S.C. § 846; (3) possession with intent to distribute more than 5 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B); and (4) possession with intent to distribute less than 500 grams of a substance containing cocaine, in violation of 18 U.S.C. § 841(b)(1)(C). Aside from his double jeopardy argument, Defendant does not challenge these convictions on appeal. . Appointed appellate counsel filed an Anders brief suggesting Defendant’s appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In response, Defendant filed a motion to waive appellate counsel and proceed pro se. We allowed Defendant’s motion and counsel withdrew. In the Anders brief, appellate counsel included an ineffective assistance of trial counsel argument out of an abundance of caution in order to preserve the issue for collateral review. As we explained in United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc): ''[Ineffective assistance of counsel] claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed. The reasons for this rule are self-evident.... A factual record must be developed in and addressed by the district court in the first instance for effective review.” (internal citations and footnote omitted). Here, Defendant’s appellate counsel has not even pointed to specific errors that trial counsel made, so no way exists for us to review the ineffective assistance of counsel claim. . Because the court did not swear the initial jury, we need not address the question of whether \"manifest necessity” resulting from prior defense counsel's conflict of interest required the selection of a second jury. See Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Shinault, 147 F.3d 1266, 1275 (10th Cir.1998). . To establish Defendant did not have the right to transport or possess firearms in the State of Michigan at the time of his arrest, the Government has" }, { "docid": "12684682", "title": "", "text": "SOTOMAYOR, Circuit Judge: The question presented in this case is whether an attorney who fails to file a notice of appeal requested by his client is constitutionally ineffective when the client waived appeal in his plea agreement. We hold that even after a waiver, a lawyer who believes the requested appeal would be frivolous is bound to file the notice of appeal and submit a brief pursuant to An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). When counsel fails to do so, we will presume prejudice, as required by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and the defendant will be entitled to a direct appeal without any showing on collateral review that his appeal will likely have merit. BACKGROUND Petitioner-appellant Jose Campusano (“Campusano”) appeals from an order of the United States District Court for the Southern District of New York (Scheind-lin, J.) denying his motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On November 7, 2001, Campusano pled guilty to one count of distributing and possessing with intent to distribute 27 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Campusano’s plea agreement contained a promise not to appeal or otherwise challenge his sentence under 8 U.S.C. § 2255, provided the sentence fell within a stipulated range of 108 to 135 months. On May 21, 2002, the district court imposed a sentence of 108 months. No direct appeal was filed. On April 15, 2003, Campusano filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the basis of ineffective assistance of counsel. Campusano claimed, inter alia, that he twice timely requested that his counsel file a notice of appeal but that his counsel failed to do so. He referenced the general per se rule created by Flores-Ortega that failure to file a requested notice of appeal constitutes ineffective assistance and that no independent showing of prejudice need be made in such cases. Before the district court, the" }, { "docid": "14537599", "title": "", "text": "POSNER, Circuit Judge. D’Marcus Mason was sentenced to 135 months in prison for a drug offense, having pleaded guilty pursuant to a plea agreement, and he filed a timely notice of appeal. Although he has not yet filed his opening brief, the government has moved to dismiss the appeal, arguing that we lack jurisdiction because Mason waived his appeal rights as part of a plea agreement. (In fact a waiver of appeal rights does not deprive us of our appellate jurisdiction, although it is a ground for dismissing the appeal.) Mason’s counsel has filed a response in which he agrees that the appeal should be dismissed because of the waiver and asks for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes a criminal defendant’s lawyer to withdraw from the representation of his client on appeal if there are no nonfrivolous grounds for an appeal. The novelty that gives rise to this opinion is a motion by counsel in a criminal case to withdraw by filing a response to a motion to dismiss, rather than by filing a formal Anders brief when the opening brief on appeal is due. A waiver of appeal even in a criminal case is normally valid and binding, e.g., United States v. Nave, 302 F.3d 719, 720-21 (7th Cir.2002); United States v. Brown, 328 F.3d 787, 788 (5th Cir.2003); United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003); but it “does not, in every instance, foreclose review.” United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002). The plea agreement containing the waiver may have preserved some issue for appeal. United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000). Or, if the plea agreement turns out to be unenforceable, maybe because the government committed a material breach or the plea was involuntary on the part of the defendant, the waiver falls with the agreement and the appellant can appeal. United States v. Woolley, 123 F.3d 627, 632 (7th Cir.1997); United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir.2002); United" }, { "docid": "22703688", "title": "", "text": "no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit Rule 109.2(a). This rule, like the Anders case itself, provides only a general explanation of the contours of the court’s and counsel’s obligations in the Anders situation. However, two opinions of the Court of Appeals for the Seventh Circuit, United States v. Tabb, 125 F.3d 583 (7th Cir.1997), and United States v. Wagner, 103 F.3d 551 (7th Cir.1996), have shed new light on the interpretation of Anders. These opinions fill in gaps left by Anders and its early progeny with respect to two critical questions: (1) the responsibilities of counsel in submitting an Anders brief (Tabb); and (2) the duties of the courts of appeals" }, { "docid": "18828263", "title": "", "text": "PER CURIAM: Alba Denis Zuluaga helped her boyfriend, Herson Hoyos, distribute cocaine. She pled guilty to one count of conspiracy to distribute and possess with intent to distribute between 400 and 500 grams of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C) (1988). Chief Judge Brieant sentenced her to fifty-one months imprisonment, three years of supervised release, a drug testing and treatment program, and a mandatory special assessment of fifty dollars. She appealed from this sentence. Her appeal was first dismissed as untimely but was subsequently reinstated. Thereafter, her counsel, appointed pursuant to the Criminal Justice Act, filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there were no non-frivolous grounds for reversal. Based on his brief, counsel has moved to be relieved, and the government has moved for summary affir-mance. We grant the motion to be relieved, deny the motion for summary affir-mance, and order the appointment of new counsel. The entire argument section of the An-ders brief reads as follows: An examination of the record herein reveals no rulings by the Court regarding evidentiary or other matters which might be pursued on appeal. The sentence received by the defendant was within the applicable guideline level and the level fixed was the one most favorable to the defendant. Such a sentence is unappealable. This brief conclusory statement does not fulfill counsel’s obligations under Anders, which requires that counsel conduct a “conscientious examination” of possible grounds for appeal and submit a “brief referring to anything in the record that might arguably support the appeal,” including references both to the record and to potentially applicable legal authorities. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. Counsel’s conclusory statement is inadequate under this standard. Nell v. James, 811 F.2d 100, 104 (2d Cir.1987) (requiring Anders briefs to evidence an independent and conscientious examination of the record). Counsel’s failure to submit a proper An-ders brief works two harms. First, it fails “to assist an appellate court ... in its review of a motion to affirm summarily a district" }, { "docid": "16082684", "title": "", "text": "[defendant's] Rule 28(j) letter as raising a Blakely claim, that claim would fail. Because [defendant] did not assert before the district court that his sentence must be based only on those facts set out in the indictment and/or his plea agreement, this court reviews only for plain error.”). We have also previously refused to consider an issue asserted for the first time in a Rule 28(j) letter. See United States v. Kimler, 335 F.3d 1132, 1138 n. 6 (10th Cir.2003). Defendant filed neither a Motion for Post-Submission Consideration nor did he seek permission to file a brief properly raising the Blakely issue. See United States v. Badilla, 383 F.3d 1137, 1143 n. 2 (10th Cir.2004) (reviewing Blakely claim raised in Motion for Post-Submission Consideration for plain error); Maldonado-Ramires, 384 F.3d at 1230 n. 1 (\"[B]ecause [defendant] did not ask to file a brief raising a proper Blakely challenge, we do not consider the matter further.”). Accordingly, we decline to consider it here. . The jury also convicted Defendant of the following drug offenses: (1) possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(b)(1)(D); (2) conspiracy to commit the same, in violation of 18 U.S.C. § 846; (3) possession with intent to distribute more than 5 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B); and (4) possession with intent to distribute less than 500 grams of a substance containing cocaine, in violation of 18 U.S.C. § 841(b)(1)(C). Aside from his double jeopardy argument, Defendant does not challenge these convictions on appeal. . Appointed appellate counsel filed an Anders brief suggesting Defendant’s appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In response, Defendant filed a motion to waive appellate counsel and proceed pro se. We allowed Defendant’s motion and counsel withdrew. In the Anders brief, appellate counsel included an ineffective assistance of trial counsel argument out of an abundance of caution in order to preserve the issue for collateral review. As we explained in United States v. Galloway," }, { "docid": "23501663", "title": "", "text": "TACHA, Circuit Judge. Following this court’s affirmance of his conviction and sentence on direct appeal, defendant Willis Jeffrey Kelly filed a motion seeking relief under Fed.R.Crim.P. 32 and 35. The district court sua sponte re-characterized the motion as one challenging the convictions and sentence under 28 U.S.C. § 2255 and denied relief. Because of the implications of the court’s action on the prohibition against successive § 2255 motions, we conclude the court should have first given Kelly notice of its intent to recharacterize his motion and an opportunity to withdraw or supplement it. Since the court did not provide Kelly with this opportunity, we vacate the order dismissing the case and remand. I. Kelly was convicted of burglary of a credit union and attempted escape from a federal holding facility and was sentenced to serve sixty months in prison and ordered to pay restitution. His counsel perfected an appeal, but decided the appeal was frivolous and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Kelly did not file a separate brief, and this court affirmed the convictions and sentence. See United States v. Kelly, No. 98-2339, 1999 WL 339692 (10th Cir. May 28, 1999). Several months after our decision on appeal, Kelly filed a pro se “Motion to Correct the Presentence Investigation Report And to Correct or Reduce Sentence,” stating that he was seeking relief pursuant to Fed.R.Crim.P. 32(c)(3)(D) and 35(a) and (b). In his motion, Kelly challenged a number of factual statements in the pre-sentence report and contended he should be resentenced within the range of thirty-three to forty-one months. The government responded by contending that Kelly’s claims were irrelevant or had been waived and that his motion should be summarily denied. In its memorandum opinion and order, the district court noted that Kelly filed his motion under Rules 32 and 35, but stated that the motion “was treated administratively as a motion under 28 U.S.C. § 2255.” R. Doc. 4 at 1. The court found that Kelly’s allegations did not invoke the provisions of either Rule 32 or" }, { "docid": "16249022", "title": "", "text": "consent is a closer call than that of his co-tenants, we are not “left with the definite and firm conviction that a mistake has been made” by the district court, and we find no clear error in its finding that Pineda-Soria’s consent was also voluntary. Lewis, 608 F.3d at 1000 (quotation and citation omitted). Having found that the district court did not err in concluding that the consents from Pineda-Soria and the co-tenants were valid, we need not reach the question of whether the inevitable discovery doctrine would also have justified the warrant-less search. See United States v. Patterson, 65 F.3d 68, 72 (7th Cir.1995). We affirm the district court’s denial of Pineda-Soria’s motion to suppress the contraband found in his apartment and the statements he made in connection therewith. IV. ARTURO PINEDA-LOPEZ— COUNSEL’S MOTION TO WITHDRAW Arturo Pineda-Lopez was another “runner” in the conspiracy and was overheard on wiretaps delivering cocaine for Efrain Pineda-Buenaventura. Evidence showed he delivered somewhere between 500 grams and 2 kilograms of drugs. He pled guilty pursuant to a plea agreement to conspiracy to possess with intent to distribute 500 grams of cocaine, in violation of 21 U.S.C. § 846. Pineda-Lopez’s PSR determined that he had a base offense level under the sentencing guidelines of 21, after a 3-level downward adjustment based on acceptance of responsibility and a 2-level downward adjustment because he met the “safety valve” provision, 18 U.S.C. § 3553(f). Coupled with a criminal history category of I, Pineda-Lopez’s advisory guideline range was 37-46 months. At sentencing, the district court gave him the bottom of the range: 37 months. PinedaLopez’s trial counsel has filed an Anders brief seeking permission to withdraw on the basis that there are no non-frivolous arguments to be made on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pineda-Lopez did not respond to his counsel’s submission, and so we review the potential issues counsel has identified in his brief. See United States v. Garcia, 580 F.3d 528, 543 (7th Cir.2009). Counsel represents that Pineda-Lopez would challenge the reasonableness of his sentence by" }, { "docid": "23699888", "title": "", "text": "RICHARD S. ARNOLD, Circuit Judge. After Morrison pleaded guilty to a felon-in-possession charge, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), the District Court sentenced him to three years and one month imprisonment, and three years supervised release. Appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and we granted Morrison permission to file a pro se supplemental brief, which he has done. The government has filed a motion to dismiss Morrison’s appeal, arguing that he waived his right to appeal. We grant the government’s motion to dismiss. Morrison’s written plea agreement contains the following language: WAIVER OF DEFENSES AND APPEAL RIGHTS: Defendant hereby waives any right to raise and/or appeal and/or file any post-conviction writs of habeas corpus or coram nobis concerning any and all motions, defenses, probable cause determinations, and objections which defendant has asserted or could assert to this prosecution and to the Court’s entry of judgment against defendant and imposition of sentence under 18 U.S.C. § 3742 (sentence appeals). Both the defendant and the United States reserve the right to appeal a departure from a guideline sentence. This appeal waiver may be enforced if Morrison made a knowing and voluntary decision to forego his right to appeal. See United States v. Michelsen, 141 F.3d 867, 871 (8th Cir.), cert. denied, - U.S. -, 119 S.Ct. 363, 142 L.Ed.2d 299 (1998). Although Morrison argues that his plea was not knowing and voluntary, he has not made an adequate showing on this issue. Our review of the plea-hearing transcript convinces us that Morrison understood his rights and made a voluntary and intelligent choice among alternative courses of action. See United States v. Gray, 152 F.3d 816, 819 (8th Cir.1998) (whether guilty plea was knowing and voluntary is mixed question of fact and law that this court reviews de novo), cert. denied, - U.S. -, 119 S.Ct. 1091, 143 L.Ed.2d 91 (1999); United States v. Vest, 125 F.3d 676, 679 (8th Cir.1997). Moreover, the appeal-waiver language is clear; the Court brought the appeal waiver to Morrison’s attention" }, { "docid": "22655600", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: Defendant Ramona Flores appeals after her guilty plea conviction for being found illegally in the United States after having been previously deported, in violation of 8 U.S.C. § 1326. Flores’ counsel has filed a motion to withdraw and a brief that relies on Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that the appeal is without merit. We grant the motion and take this opportunity to explain what we expect in an Anders brief and why the brief in this case is sufficient. I. Nicaraguan national Ramona Flores pleaded guilty, pursuant to a written plea agreement, to being found illegally in the U.S. after having been previously deported, in violation of 8 U.S.C. § 1326. The plea agreement did not contain an appeal waiver. The factual basis that Flores admitted to be true at rearraignment stated that she previously was deported from the U.S. on May 10, 2006, and that she was again found inside the U.S. on July 8, 2009. See United States v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir.2008) (holding that the fact of removal must be admitted or proven beyond a reasonable doubt). The PSR calculated Flores’ total offense level at 21. This included a 16-level increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because she had previously been deported following a felony conviction for a crime of violence, specifically, a December 2000 Florida conviction for aggravated assault with a deadly weapon. It determined Flores’ criminal history score to be III, subjecting her to a guidelines range of 46 to 57 months of imprisonment. Flores did not object to the PSR’s calculations. The district court sentenced her at the low end of the guidelines range, 46 months, followed by a three-year period of supervised release. Flores timely appealed. II. The Federal Public Defender appointed to represent Flores has filed a motion for leave to withdraw and an Anders brief. Anders established standards for a court-appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an issue of arguable merit." }, { "docid": "23067912", "title": "", "text": "In considering defendant’s appeal, we address whether Fed.R.Civ.P. 15(c) allows his amended motion to relate back to the date of his original filing. Because this presents a question of first impression in this circuit, we conclude that the issue merits further judicial consideration, and we grant a certificate of appealability. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291, and we affirm. I. Defendant pled guilty to one count of possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 841(b)(1)(C), and 18 U.S.C. § 2, and one count of conspiracy to commit the same in violation of 21 U.S.C. § 846. The sentencing court found defendant to be a career offender and sentenced him to 151 months on the conspiracy count and sixty months on the possession count, to be served concurrently. Defendant timely filed a pro se notice of appeal raising the issue of the sentencing court’s denial of a downward departure based on his ill health. Defendant’s counsel also filed a notice of appeal, a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw. In his response, defendant asserted several ineffective assistance of trial counsel claims. This court granted counsel’s request to withdraw, dismissed the appeal for lack of jurisdiction over the sentencing court’s refusal to depart downward, and expressly advised defendant to bring his ineffective assistance of counsel claims in a § 2255 motion. Defendant timely filed a pro se § 2255 motion, asserting that the sentencing court erred in sentencing him on a count on which he had been found not guilty, and that the pre-sentence report inappropriately used a 1995 escape charge to enhance his criminal history category. After the expiration of his one-year limitations period under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and while his first motion was still pending, defendant filed a supplemental motion asserting a number of ineffective assistance of counsel claims. The magistrate judge found the claims in defendant’s first motion to" }, { "docid": "22677619", "title": "", "text": "PREGERSON, District Judge: Appointed counsel for Francisco Aguilar-Muniz has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no meritorious issues for appeal and requesting leave to withdraw as counsel. Although notified of his right to respond to counsel’s motion to withdraw, appellant has failed to respond. After consideration of the issues identified by counsel, and after an independent review of the record, we grant the motion to withdraw and affirm the decision below. On November 9, 1995, Francisco Aguilar-Muniz (“Aguilar-Muniz”) was indicted along with four co-defendants for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). On June 4, 1996, Aguilar-Muniz waived indictment and pleaded guilty to a superseding information charging conspiracy to manufacture methamphetamine. On June 27, 1996, the government moved to be relieved of its obligations under Aguilar-Muniz’s plea agreement on the grounds that Aguilar-Muniz had not testified truthfully at the trial of co-defendant Jose Luis Buenrostro. On August 15, 1996, Aguilar-Muniz waived his right to a hearing on the government’s motion to withdraw the previous plea agreement, and pleaded guilty to a new superseding indictment charging possession of pseu-doephedrine with knowledge that it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(2) and use of a telephone to facilitate conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 843(b). Aguilar-Muniz was sentenced on October 30, 1996 to the statutory maximum of fourteen years imprisonment. Aguilar-Muniz timely noticed this appeal on November 5, 1996. Attorney Kent Verne Anderson was appointed counsel on November 6, 1996. Anderson now moves to withdraw, and files a brief pursuant to Anders, asserting that there are no non-frivolous issues for appeal. As required by Anders, counsel has filed a brief identifying possible issues for appeal. As part of the plea agreement, Aguilar-Muniz had waived the right to appeal his conviction. Counsel has identified two possible issues regarding the waiver of appeal: (1) Did the district court comply with Rule 11 of the Federal Rules of Criminal Procedure in taking the" }, { "docid": "11778383", "title": "", "text": "PER CURIAM: Francisco Baraga appeals from his sentence of 70 months’ imprisonment, 8 years’ supervised release and a $50 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school in violation of 21 U.S.C. § 846. Martin Estrella appeals from his sentence of 131 months’ imprisonment and a $100 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school, in violation of 21 U.S.C. § 846, and possession of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924. Gold-stein, Weinstein & Fuld (“GWF”), Baraga’s retained counsel, and Howard S. Ripps, Es-trella’s retained counsel, request permission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although Anders motions are typically made by counsel appointed for indigent defendants pursuant to Fed.R.Crim.P. 44 and the Criminal Justice Act, 18 U.S.C. § 3006A, retained counsel may properly file Anders motions. Although we have never commented on this practice, we have granted Anders motions by retained counsel. See, e.g., Grimes v. United States, 607 F.2d 6, 7 (2d Cir.1979). The Supreme Court has declared in the Anders context that retained and appointed counsel share the responsibility not to “consume the time and the energies of the court or the opposing party by advancing frivolous arguments.” McCoy v. Court of Appeals of Wisc. Dist., 486 U.S. 429, 436, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988). GWF and Ripps both claim that the court should grant their requests because the appeals contain no non-frivolous issues. The government has moved for summary affirmance as to both defendants. Because the Anders briefs are inadequate, we deny GWF and Ripps permission to withdraw until the defendants have been notified by the Clerk of their respective counsels’ desires and of the opportunity to have new counsel appointed. The government’s motions for summary affirmance are denied. GWF’s and Ripps’ briefs fail to demonstrate a minimal effort to “search the record with care, and then to explain to an" }, { "docid": "22540513", "title": "", "text": "ROBERT M. PARKER, Circuit Judge: Counsel for Tracy Joseph Wagner filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel now asks that he be allowed to withdraw. Wagner similarly requests that counsel be allowed to withdraw so that he can proceed pro se on appeal. Wagner further requests that counsel’s Anders brief be stricken. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that after a conscientious examination of the record, if appointed counsel finds a criminal defendant’s case to be wholly frivolous, he or she should so advise the court and request permission to withdraw. This request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The court further required that a copy of the brief be furnished to the defendant so as to allow him an oppor tunity to raise any issues he so chooses. Id. The Anders decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and" }, { "docid": "22703687", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. I. Donald Wayne Marvin pled guilty to conspiracy, robbery, and the use of a firearm during a crime of violence. Marvin wanted to appeal aspects of his sentencing, but Marvin’s counsel filed an Anders motion, requesting to withdraw from representing him and expressing his belief that there were no nonfrivolous arguments for appeal. After reviewing the brief, we conclude that it is inadequate, and deny counsel’s motion. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal. An-ders struck down a process that allowed courts of appeals to accept a mere assertion by counsel that he or she found the appeal to be “without merit.” Id. at 743, 87 S.Ct. 1396. The Court suggested, however, that if, after a “conscientious examination” of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After" }, { "docid": "16249023", "title": "", "text": "agreement to conspiracy to possess with intent to distribute 500 grams of cocaine, in violation of 21 U.S.C. § 846. Pineda-Lopez’s PSR determined that he had a base offense level under the sentencing guidelines of 21, after a 3-level downward adjustment based on acceptance of responsibility and a 2-level downward adjustment because he met the “safety valve” provision, 18 U.S.C. § 3553(f). Coupled with a criminal history category of I, Pineda-Lopez’s advisory guideline range was 37-46 months. At sentencing, the district court gave him the bottom of the range: 37 months. PinedaLopez’s trial counsel has filed an Anders brief seeking permission to withdraw on the basis that there are no non-frivolous arguments to be made on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pineda-Lopez did not respond to his counsel’s submission, and so we review the potential issues counsel has identified in his brief. See United States v. Garcia, 580 F.3d 528, 543 (7th Cir.2009). Counsel represents that Pineda-Lopez would challenge the reasonableness of his sentence by arguing that his 37-month term is unduly harsh in light of his limited involvement in the conspiracy and his lack of criminal history. Counsel claims that while Pineda-Lopez may view the sentence as harsh, it was well within the district court’s discretion to impose it, and points out that the sentence is at the bottom of the advisory guideline range. Therefore, counsel argues, Pineda-Lopez’s argument would be frivolous if raised on appeal. Having reviewed the record and counsel’s Anders brief, we agree. The court reviews the reasonableness of a sentence under an abuse of discretion standard. United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009). We apply a presumption of reasonableness to a sentence that reflects proper application of the guidelines. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Here, the sentence was reasonable. The district court properly calculated and considered the applicable Sentencing Guidelines range, did not clearly err in its factual findings, and imposed a sentence at the bottom of the range after considering the" }, { "docid": "23465262", "title": "", "text": "OPINION OF THE COURT HUTCHINSON, Circuit Judge. Kathy-Ann Tannis (Tannis) appeals a judgment of conviction and sentence the United States District Court for the District of New Jersey imposed on her after she pled guilty to a charge of possessing approximately 374 grams of a mixture containing cocaine base, with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1). Tannis was sentenced pursuant to the Sentencing Reform Act. The applicable guideline prescribed a sentencing range of 121 to 151 months. The district court permitted a downward departure to the statutory minimum and imposed a sentence of 120 months followed by a five-year term of supervised release. Her motion for an extension of time to file a notice of appeal was allowed by the district court. Appellant’s Appendix (App.) at 2a. We have appellate jurisdiction over her appeal under 28 U.S.C.A. § 1291 (West Supp.1991). The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). Tannis’s counsel filed a brief pursuant to the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with Anders, counsel stated his opinion that Tannis’s appeal does not present any non-frivolous issues for review. However, as Anders requires, he went on to raise and discuss two possible questions. The first concerned the plea proceeding and the second concerned the sentencing process. After counsel filed the Anders brief in support of his motion for leave to withdraw, a motions panel of this Court granted Tannis an opportunity to file a pro se brief. When she failed to do so within the time set, she was granted an extension. Tannis did not file a pro se brief within the time set by the final extension, which expired on April 15, 1991. She has filed nothing in support of her argument to date. In accordance with Anders, we have independently considered the matters counsel raises in his Anders brief and also independently examined the record to determine whether it presents any non-frivolous issue that would justify our review. Having found" }, { "docid": "11011262", "title": "", "text": "failed to present the statutory directive that Steward be given an opportunity to withdraw the plea. On appeal of the trial court’s denial of Steward’s motion, his attorney filed an Anders brief suggesting the absence of meritorious issues for appeal. Pursuant to Anders, of course, counsel is required to brief “anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The briefing must presumably be done from an advocacy perspective “where counsel acts in the role of an active advocate in behalf of [her] client, as opposed to that of amicus curiae.” Id. The filing of an Anders brief that fails to point out meritorious issues can, in principle, constitute ineffective assistance. See, e.g., Robinson v. Black, 812 F.2d 1084 (8th Cir.1987), cert. denied 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). The neglected claim need not be one of federal law. In fact, failure to raise a state law issue can, if such a failure falls outside the range of competent assistance, form a basis for an ineffective assistance claim under the federal constitution. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994). Under the circumstances presented here, it certainly can be argued that Jackson’s failure either to seriously argue this issue in the initial hearing on the motion to vacate the guilty plea or to raise this issue on appeal constituted ineffective assistance of counsel. The Illinois courts have strictly enforced the notice requirement of the extended term statute. Steward, therefore, has a credible argument that he was prejudiced by his counsel’s failure to press this issue. However, the state courts have never had the opportunity to consider the ineffectiveness claim in this form. Steward did not raise it in his pro se post-conviction petition, his appointed post-conviction counsel did little to supplement his pro se petition and his appointed appellate counsel for the post-conviction proceeding withdrew from the case, apparently without consulting Steward. Thus, while this claim may have arguable merit, it was not properly before the district court and" } ]

[ { "docid": "3177519", "title": "", "text": "of the three doors is a valuable prize.” Jane: \"And Monty, that prize is $25.00 in cash.” Monty Hall: “Which door do you choose? Press one, two or three.” Caller presses number. Weird noise. Monty Hall: \"Oh, dear, you chose the wrong door. Here's Jane to tell you what you could have won.” Jane: \"You could have won [an amount of money].” (\"Ahhhhhhhhhh.”D ] Jane: \"But instead, you chose the wrong door. You gave it a good try and we hope you enjoyed playing Let’s Make a Deal.” Music. . The named plaintiffs are James W. Sikes and Felix Kemp. These two individuals are the named plaintiffs for both the master class and the Georgia subclass described infra. . We refer throughout to the plaintiffs' amended complaint, filed May 7, 1993, simply as “the complaint.’’ Plaintiffs' original complaint was filed on November 11, 1992. . We note that the plaintiffs' complaint is yet another example of what we have often criticized as \"shotgun pleadings,” where each count \"incorporates” all of the preceding paragraphs and counts. We have harshly criticized such shotgun pleadings in the past, and we repeat our displeasure with this type of complaint now. See, e.g., Magluta v. Samples, 256 F.3d 1282 (11th Cir.2001); Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir.1997); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162 (11th Cir.1997); Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905 and n. 9 (11th Cir.1996); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 11 F.3d 364, 366-67 (11th Cir.1996); Pelletier v. Zweifel, 921 F.2d 1465, 1517-18 (11th Cir.1991). . 18 U.S.C. § 1962(c) provides: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. . 18 U.S.C. § 1962(d) provides: It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b)," } ]

[ { "docid": "23622485", "title": "", "text": "(A) (i). . As noted above, Thompson purchased 50,-000 Media shares in Media’s June private offering. He also bought 10,000 shares on July 17, 2006, in the open market. Thompson apparently believed that the July 17 purchase enabled him to \"fairly and adequately” represent and \"protect the interests of” those of the class who purchased Media shares in the open market. See Fed.R.Civ.P. 23(a)(4). . The complaint was a typical \"shotgun” pleading, in that each count incorporated by reference all preceding paragraphs and counts of the complaint notwithstanding that many of the facts alleged were not material to the claim, or cause of action, appearing in a count's heading. This circuit condemns shotgun pleadings. See, e.g., Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.1991) (\"Anyone schooled in the law who read these [shotgun pleading] complaints ... [ ] would know that many of the facts alleged could not possibly be material to all of the counts. Consequently, [the opposing party] and the district court [have] to sift through the facts presented and decide for themselves which [are] material to the particular cause of action asserted, a difficult and laborious task indeed.”); see also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 984 (11th Cir.2008) (refusing to award attorneys’ fees in a Title VII case because the use of shotgun pleadings \"complicated [appellate review] to no end”); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n. 1 (11th Cir.2006) (noting that shotgun pleadings are \"frowned upon in this circuit”); Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir.2001) (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.”); Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1567 (11th Cir. 1995) (\"The bar would be better served by heeding this advice: ‘In law it is a good policy never to plead what you need not, lest you oblige yourself to prove what you cannot.' ”) (quoting Abraham Lincoln, Letter to Usher F. Linder, Feb. 20, 1848, in The Quotable Lawyer 241 (D. Shrager & E. Frost eds., 1986)). The first 50 paragraphs" }, { "docid": "16415441", "title": "", "text": "the statement induce plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s damages resulting from reliance on the statement. Wernikoff, 315 Ill.Dec. 524, 877 N.E.2d at 16. .It can be assumed from the very nature of a Ponzi scheme that the perpetrator of the Ponzi scheme made false representations to lenders/investors as to the profitability and legality of the fraudulent enterprise. . The Plaintiff’s Amended Complaint is a classic \"shotgun pleading.” \"Shotgun pleadings” do not comply with Rule 8(a)’s requirement for a \"short and plain statement” and thus make \" ‘it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief\" Peavey v. Black, 476 Fed.Appx. 697, 699 (11th Cir.2012) (quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366-67 (11th Cir.1996)). A shotgun pleading \"invariably beginfs] with a long list of general allegations, most of which are immaterial to most of the claims for relief.” Johnson Enters, of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir.1998). The pleading then “ 'incorporate^] every antecedent allegation by reference into each subsequent claim for relief \" Liebman v. Deutsche Bank Nat. Trust Co., 462 Fed.Appx. 876, 879 (11th Cir.2012) (quoting Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir.2006)). \"The result is that each count is replete with factual allegations that could not possibly be material to that specific count, and that any allegations that are material are buried beneath innumerable pages of rambling irrelevancies.” Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.2001)." }, { "docid": "23576608", "title": "", "text": "unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. . The court did err in converting the defendants' Rule 12(b)(6) motion to dismiss the second amended complaint into a Rule 12(c) motion for judgment on the pleadings. Rule 12(c) does not come into play until 'fajfter the pleadings are closed.” The pleadings in this case were not closed because the defendants had not answered the second amended complaint. The court’s error, however, is of no moment. Whether the court examined Count IV of the second and third amended complaints under Rule 12(b)(6) or Rule 12(c), the question was the same: whether the count stated a claim for relief. . This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay. See, e.g., Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir.2001) (\"Shotgun pleadings ... impede[ ] the due administration of justice and, in a very real sense, amountf] to obstruction of justice.”) (internal citation omitted); Magluta v. Samples, 256 F.3d 1282, 1284-85 (11th Cir.2001) (per cu-riam) (refusing to address and decide serious constitutional issues on the basis of a \"quintessential 'shotgun' pleading of the kind [this court has] condemned repeatedly, beginning at least as early as 1991” because \"[i]l is in no sense the ‘short and plain statement of the claim’ required by Rule 8”); Anderson v. Dist. Bd. of Trustees of Cent. Fl. Comm. Coll., 77 F.3d 364, 366 (11th" }, { "docid": "19235046", "title": "", "text": "not proper parties to this action, we will not mention them again. . Though not explicit in the court's order, the clear implication is that it believed that count one provided enough \"factual support” to state a claim against the individual deputies and would have survived the motion to dismiss if not for its perceived violations of Rules 8(a)(2) and 10(b). . For the sake of simplicity, in the remainder of this opinion we refer to the third amended complaint as simply \"the complaint,” except where necessary to distinguish between it and one of the three earlier versions of Weiland’s complaint. .Because we affirm on other grounds the district court’s dismissal of Weiland’s claims against the Sheriff’s Office, see infra Part II.C, we limit the discussion in this section to the claims asserted against Johnson and Fleming in counts one and three. . The last thirteen words of the quoted passage from the opinion actually say \"are flatly forbidden by the letter, if not the spirit, of these rules.” Because we are sure that the words \"spirit” and \"letter” were inadvertently transposed in the opinion, we have switched and bracketed them in our quotation of it. . See, e.g., Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1125 n. 2 (11th Cir.2014) (citing twenty-one published opinions condemning shotgun pleadings); Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 n. 54 (11th Cir.2008) (“[S]ince 1985 we have explicitly condemned shotgun pleadings upward of fifty times.”); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n. 9 (11th Cir.2002) (\"This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay.”); see also Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir.1996) (\"Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial corut’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to administer justice.”). . While plaintiffs have the responsibility" }, { "docid": "17426758", "title": "", "text": "2003, Boeing sent eleven more boxes of Lockheed documents to Lockheed’s outside counsel. Those boxes also contained Lockheed proprietary and trade secret information. Boeing continued to produce Lockheed documents in its possession. On May 9 and May 23, 2003, Boeing sent Lockheed another four boxes of Lockheed proprietary and trade secret information. On June 2, 2003, Boeing turned over copies of two e-mail messages from Branch to another Boeing employee attaching Lockheed proprietary documents. On June 4, Boeing surrendered another 1,850 pages of Lockheed documents, and finally, on June 6, 2003 Boeing advised Lockheed that it had still more Lockheed documents in its possession. By the time the Complaint in this case was filed on June 10, 2003, Boeing had turned over 37,173 pages of Lockheed documents. II. MOTION FOR A MORE DEFINITE STATEMENT Erskine describes Lockheed’s Complaint as a “shotgun pleading” and seeks a more definite statement from Lockheed under Federal Rule of Civil Procedure 12(e). (Doc. 55 at 2.) A court should not grant a Rule 12(e) motion unless the pleading in question is “so vague that a party cannot reasonably be required to frame a responsive pleading.” Fed.R.Civ.P. 12(e); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 11 F.3d 364, 367 (11th Cir.1996). The Eleventh Circuit Court of Appeals refers to the most vague pleadings as “shotgun pleadings.” One typical feature of a shotgun pleading is incorporation of the same lengthy allegations into each claim alleged, which makes it difficult “to know which allegations of fact are intended to support which claim(s) for relief.” Anderson, 11 F.3d at 366. Lockheed’s Complaint is not a shotgun pleading. Lockheed does repeatedly incorporate into each Count all of the general allegations in paragraphs 1-168. In each Count, however, Lockheed also reiterates in detail the particular relevant portions of those general allegations. Erskine was able to and did file adequate responsive motions to this Complaint. For these reasons, Ers-kine’s motion for a more definite statement is denied. III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM For purposes of a motion to dismiss, a court must view" }, { "docid": "23576610", "title": "", "text": "Cir.1996) (\"[Plaintiff's] complaint is a perfect example of 'shotgun' pleading in that it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.”) (internal citation omitted); Pelletier v. Zweifel, 921 F.2d 1465, (11th Cir.1991) (describing \"quintessential shotgun pleadings” complete with \"rambling recitations” and \"factual allegations that could not possibly be material” that force the \"district court [to] sift through the facts presented and decide for [itself] which were material to the particular cause of action asserted”). .Indeed, the aggregate negative effects of shotgun pleadings on trial courts have been noted with great concern by this court. See, e.g., Byrne, 261 F.3d at 1131 (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice. The time a court spends managing litigation framed by shotgun pleadings should be devoted to other cases waiting to be heard.”); Crarner v. Florida, 117 F.3d 1258, 1263 (11th Cir.1997) (noting that ''[s]hotgun pleadings ... exact an intolerable toll on the trial court's docket\"); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir.1997) (per cu-riam) (\"[S]hotgun notice pleadings . .. impede the orderly, efficient, and economic disposition of disputes.”); Anderson, 77 F.3d at 367 (noting the \"cumbersome task of sifting-through myriad claims, many of which may be foreclosed by various defenses” that judges face in connection with shotgun pleading). . Count I \"Fraud,” Count II \"Conversion,\" Count III \"Breach of Fiduciary Duties,” Count IV \"Securities Fraud — Violation of § § 10(b) and 20 of The Exchange Act and Rule 1 Ob-5,” Count V \"Securities Fraud— Violation of O.C.G.A. § 10-5-12,” Count VI \"Accounting,” Count VII \"Constructive Trust,” Count VII “Negligence,” and Count IX \"Conspiracy.” . In drafting Count IV, counsel was certainly mindful of the general rule that clearing firms have no fiduciary relationship with the customers of introducing brokers, see, e.g,, Connolly v. Havens, 763 F.Supp. 6, 10 (S.D.N.Y.1991) (\"It is well-established that a clearing firm ... does not have a fiduciary relationship with the customers ... of the introducing broker with which it has contracted to perform clearing" }, { "docid": "16415440", "title": "", "text": "of it, as when an attorney gives a casual and offhand opinion on a point of law to a friend whom he meets on the street, or what is commonly called a \"curbstone opinion,” it is not to be regarded as given in the course of his business or profession; and since he has no other interest in it, it is considered purely gratuitous. The recipient of the information is not justified in expecting that his informant will exercise the care and skill that is necessary to insure a correct opinion and is only justified in expecting that the opinion will be an honest one. Restatement (Second) of Torts § 552 cmt. d (emphasis added); see also, Sports Immortals, Inc., 67 So.3d at 440-41. . As discussed in Section IV(B)(ii), supra, when the Plaintiff uses the generic term \"fraud,” the Court assumes it to mean \"common law fraud.” . The elements of common law fraud are: (1) a false statement of material fact; (2) defendant's knowledge that the statement was false; (3) defendant’s intent that the statement induce plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s damages resulting from reliance on the statement. Wernikoff, 315 Ill.Dec. 524, 877 N.E.2d at 16. .It can be assumed from the very nature of a Ponzi scheme that the perpetrator of the Ponzi scheme made false representations to lenders/investors as to the profitability and legality of the fraudulent enterprise. . The Plaintiff’s Amended Complaint is a classic \"shotgun pleading.” \"Shotgun pleadings” do not comply with Rule 8(a)’s requirement for a \"short and plain statement” and thus make \" ‘it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief\" Peavey v. Black, 476 Fed.Appx. 697, 699 (11th Cir.2012) (quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366-67 (11th Cir.1996)). A shotgun pleading \"invariably beginfs] with a long list of general allegations, most of which are immaterial to most of the claims for relief.” Johnson Enters, of Jacksonville, Inc. v. FPL Grp., Inc., 162" }, { "docid": "19602498", "title": "", "text": "the past, often at great length and always with great dismay.\"). See Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll. , 77 F.3d 364, 367 (11th Cir. 1996) (\"Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.\"). In Byrne v. Nezhat , 261 F.3d 1075 (11th Cir. 2001), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co. , 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), we explained: Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice. ... Wasting scarce judicial and parajudicial resources impedes the due administration of justice and, in a very real sense, amounts to obstruction of justice. Although obstruction of justice is typically discussed in the context of criminal contempt, the concept informs the rules of law-both substantive and procedural-that have been devised to protect the courts and litigants (and therefore the public) from abusive litigation tactics, like shotgun pleadings. If use of an abusive tactic is deliberate and actually impedes the orderly litigation of the case, to-wit: obstructs justice, the perpetrator could be cited for criminal contempt. Id. at 1131-32 (quotations and citations omitted) (alterations accepted). Rule 11(b) states, in relevant part: (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation .... Fed. R. Civ. P. 11(b), (b)(1) (emphasis added). See supra note 6. The Second Amended Complaint proposed by the Jacksons fared no better: it swelled to thirty-five pages and 141 paragraphs; it still contained sixteen counts; and it, too, reincorporated all of the allegations into each count." }, { "docid": "22240143", "title": "", "text": "after the defendants “had filed numerous depositions, answers to interrogatories, admissions, and other affidavits.” Id. at 198. We do not understand the dissent to suggest that future First Amendment litigants should add two thousand words to their complaints, detailing the contours of their religious beliefs. We have constantly preached to attorneys that they should avoid repetitious allegations and aver-ments in complaints, warning against the reviled “shotgun pleadings” style. One of us has been particularly outspoken on the subject, always ready with the verbal cudgel to pound on those who file prolix and repetitious complaints, instead of the “short and plain statement of the claim” contemplated by Rule 8. See, e.g., Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 n. 9 (11th Cir.2002) (explaining that this Court has addressed unwieldy pleadings “on numerous occasions” and “always with great dismay”); Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir.2001) (outlining in meticulous detail a district court’s obligation not to permit duplicitous pleadings); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir.1996) (noting that repetition of allegations makes it “virtually impossible” to understand a complaint); Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.1991) (warning attorneys against forcing the court to “sift through the facts” at the pleading stage). Watts has stated in his amended complaint that his “religious beliefs include the belief’ at issue here. His representation is all that is necessary to raise the possibility that his belief is a religious one “above the speculative level.” Twombly, 127 S.Ct. at 1965; see Seeger, 380 U.S. at 184, 85 S.Ct. at 863 (“[T]he claim of the [plaintiff] that his belief is an essential part of a religious faith must be given great weight.”). We are at a loss to understand how much more he could say in his complaint and still adhere to the Rule 8 model of “a short and plain statement of the claim.” Of course, Watts could conceivably be prevaricating when he pleads that his belief is religious. Or maybe the defendants would say that" }, { "docid": "23622486", "title": "", "text": "themselves which [are] material to the particular cause of action asserted, a difficult and laborious task indeed.”); see also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 984 (11th Cir.2008) (refusing to award attorneys’ fees in a Title VII case because the use of shotgun pleadings \"complicated [appellate review] to no end”); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n. 1 (11th Cir.2006) (noting that shotgun pleadings are \"frowned upon in this circuit”); Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir.2001) (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.”); Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1567 (11th Cir. 1995) (\"The bar would be better served by heeding this advice: ‘In law it is a good policy never to plead what you need not, lest you oblige yourself to prove what you cannot.' ”) (quoting Abraham Lincoln, Letter to Usher F. Linder, Feb. 20, 1848, in The Quotable Lawyer 241 (D. Shrager & E. Frost eds., 1986)). The first 50 paragraphs of the complaint contained allegations of fact that appeared to relate to a particular count of the complaint but not to other counts. Utilizing this method of pleading, Count I incorporated the first 50 paragraphs of the complaint, many of which had nothing to do with the Count I claim(s). Counts II through IX successively incorporal ed the allegations of all preceding paragraphs and counts, such that each succeeding count was loaded down with allegations having no bearing on the claim(s) the count purported to assert. . The text of 15 U.S.C. § 77k, Civil liabilities on account of false registration statement, states, in pertinent part: (a) Persons possessing cause of action; persons liable In case any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security (unless it is proved that at the time of such acquisition he knew of" }, { "docid": "19801313", "title": "", "text": "another one for violation of his right to vote and be a candidate for office and be free of retaliation for exercising those rights, all in violation of § 5 of the Voting Rights Act. He also heaps on the pile a 42 U.S.C. § 1985 claim for conspiracy to interfere with his right to vote and be a candidate for public office and be free of retaliation based on race. Finally, he adds for good measure a 42 U.S.C. § 1981 contract claim that asserts, without explanation, that the interference with his right to vote and be a candidate for public office and retaliating against him because of his race “violated Plaintiff’s rights to make, enforce, and enter into a contract.” Cook’s second amended complaint is a shotgun pleading. We have had much to say about shotgun pleadings, none of which is favorable. See, e.g., Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 n. 54 (11th Cir.2008) (“[Since 1985 we have explicitly condemned shotgun pleadings upward of fifty times.”); Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n. 9 (11th Cir.2002) (“This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay.”); Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir.2001) (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.”); Anderson v. District Bd. of Trs. of Central Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir.1996) (“Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to administer justice.”). Attempting to impose order on the chaos, we begin with the claims that Cook has pleaded as § 1983 claims. His second amended complaint identifies those § 1983 claims as arising under the 1st, 5th, 13th, 14th, and 15th Amendments, under § 5 of the Voting Rights, and under 42 U.S.C. § 1985. All of those claims require Cook" }, { "docid": "22112656", "title": "", "text": "between these employees’ situations and his — in terms of when they were afforded the light work, what it constituted, and whether it fit his restrictions. . See, e.g., United States ex el. Atkins v. McInteer, 470 F.3d 1350, 1354 n. 6 (11th Cir.2006); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n. 1 (11th Cir.2006); Ambrosia Coal and Constr. Co. v. Morales, 368 F.3d 1320, 1330 n. 22 (11th Cir.2004); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 nn. 9-10 (11th Cir.2002); Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir.2001); Magluta v. Samples, 256 F.3d 1282 (11th Cir.2001); BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326-27 n. 6 (11th Cir.1998); GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1368 (11th Cir.1998); Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir.1997); Ibrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162 passim (11th Cir.1997); Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366-67 (11th Cir.1996); Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1567 (11th Cir.1995); Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir.1996); Oladeinde v. City of Birmingham; 963 F.2d 1481, 1483-84 (11th. Cir.1992); Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.1991); T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543-44 n. 14 (11th Cir.1986) (Tjoflat, J., dissenting). This list is just a teaser—since 1985 we have explicitly condemned shotgun pleadings upward of fifty times. . We do not know how many times these law firms have appeared in district courts of this circuit. What we do know is that, over the past decade, the firm (whose name has changed from time to time) representing plaintiffs has appeared in this court in 247 appeals. CCBCC’s principal defense counsel is a member of a firm that has appeared in this court in 195 appeals. See generally, http://www.martindale.com./Ogletree-Deakins-Nash-Smoak-Stewart/law-firm-22739-peer-review-ratings.htm; http://www. martindale.com/Wiggins-Childs-Quinn-Pantazis71aw-firm-22230-people.htm. . When read as a whole, Count I, in its 121 paragraphs of allegations, portrayed CCBCC as a company that practices race" }, { "docid": "19801314", "title": "", "text": "v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n. 9 (11th Cir.2002) (“This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay.”); Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir.2001) (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.”); Anderson v. District Bd. of Trs. of Central Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir.1996) (“Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to administer justice.”). Attempting to impose order on the chaos, we begin with the claims that Cook has pleaded as § 1983 claims. His second amended complaint identifies those § 1983 claims as arising under the 1st, 5th, 13th, 14th, and 15th Amendments, under § 5 of the Voting Rights, and under 42 U.S.C. § 1985. All of those claims require Cook to show that he was actually deprived of a constitutional liberty interest or a substantive federal right. See Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir.1999) (providing that to prevail on a § 1983 claim, “plaintiffs must demonstrate both that the defendants deprived them of a right secured under the Constitution or federal law and that the deprivation occurred under color of state law”). He has not shown that, and the undisputed facts prevent him from doing so. The Constitution certainly protects the right to vote. Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377-78, 12 L.Ed.2d 506 (1964) (“Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.”). Citizens also have a constitutionally protected right to run for public office. See McCormick v. Edwards, 646 F.2d 173, 175 (5th Cir.1981) (stating that a non-civil service employee “like all citizens, has a constitutionally protected right to actively support, work for and campaign for a partisan" }, { "docid": "19235053", "title": "", "text": "1236, 1240 (11th Cir.2000) (dubbing the complaint a shotgun pleading because it was \"96 pages long with 232 numbered paragraphs; [and] each count incorporate[d] by reference all previous paragraphs”); BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326 n. 6 (11th Cir.1998) (describing as \"a quintessential example” of a shotgun pleading a complaint in which each successive count incorporated by reference both the factual and legal allegations of the previous counts); Thornton v. City of Macon, 132 F.3d 1395, 1396 n. 1 (11th Cir.1998) (describing as a \"quintessential shotgun pleading” a two count complaint where the second count “incorporated all of the preceding allegations of the complaint, including those of Count One”); Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1376 n. 4 (11th Cir.1997) (finding that a complaint was a shotgun pleading where \"each of the complaint's nine counts incorporates all of the factual allegations of earlier counts”); Anderson, 77 F.3d at 366 (describing a complaint as a shotgun pleading where \"each count also adopts the allegations of all preceding counts”). . See, e.g., Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1359 n. 9 (11th Cir.1997) (finding a shotgun pleading where \"a reader of the complaint must speculate as to which factual allegations pertain to which count”); Cramer, 117 F.3d at 1261 (describing the complaint at issue as “a rambling 'shotgun' pleading that is so disorganized and ambiguous that it is almost impossible to discern precisely what it is that these appellants are claiming”); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 164 (11th Cir.1997) (describing a complaint that \"offered vague and conclusory factual allegations in an effort to support a multiplicity of discrimination claims leveled against 15 defendants” as a \"prototypical 'shotgun complaint' ”); Anderson, 77 F.3d at 366 (complaint was \"perfect example of ‘shotgun’ pleading in that it [was] virtually impossible to know which allegations of fact [were] intended to support which claim(s) for relief”) (citation omitted); Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Fla., 63 F.3d 1030, 1046 n. 51 (11th Cir.1995) (characterizing the complaint at issue" }, { "docid": "17426759", "title": "", "text": "is “so vague that a party cannot reasonably be required to frame a responsive pleading.” Fed.R.Civ.P. 12(e); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 11 F.3d 364, 367 (11th Cir.1996). The Eleventh Circuit Court of Appeals refers to the most vague pleadings as “shotgun pleadings.” One typical feature of a shotgun pleading is incorporation of the same lengthy allegations into each claim alleged, which makes it difficult “to know which allegations of fact are intended to support which claim(s) for relief.” Anderson, 11 F.3d at 366. Lockheed’s Complaint is not a shotgun pleading. Lockheed does repeatedly incorporate into each Count all of the general allegations in paragraphs 1-168. In each Count, however, Lockheed also reiterates in detail the particular relevant portions of those general allegations. Erskine was able to and did file adequate responsive motions to this Complaint. For these reasons, Ers-kine’s motion for a more definite statement is denied. III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM For purposes of a motion to dismiss, a court must view the allegations of the complaint in the light most favorable to the plaintiff. Fed R. Civ. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir.1994). Furthermore, a court must accept all reasonable inferences from the complaint and consider all allegations as true. Id. A court may not, however, accept conclusory allegations and unwarranted factual deductions as true. Gersten v. Rundle, 833 F.Supp. 906, 910 (S.D.Fla.1993) (citing Associated Builders, Inc., v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.1974)). Only pleadings and attached written exhibits may be considered in making these determinations. See Fed. R.Civ.P. 10(c); GSW, Inc., v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). Unless it appears beyond doubt that a plaintiff can prove no set of facts entitling him to relief, a complaint should not be dismissed for failure to state a claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Runnings v. Texaco, Inc., 29" }, { "docid": "23576609", "title": "", "text": "court’s error, however, is of no moment. Whether the court examined Count IV of the second and third amended complaints under Rule 12(b)(6) or Rule 12(c), the question was the same: whether the count stated a claim for relief. . This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay. See, e.g., Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir.2001) (\"Shotgun pleadings ... impede[ ] the due administration of justice and, in a very real sense, amountf] to obstruction of justice.”) (internal citation omitted); Magluta v. Samples, 256 F.3d 1282, 1284-85 (11th Cir.2001) (per cu-riam) (refusing to address and decide serious constitutional issues on the basis of a \"quintessential 'shotgun' pleading of the kind [this court has] condemned repeatedly, beginning at least as early as 1991” because \"[i]l is in no sense the ‘short and plain statement of the claim’ required by Rule 8”); Anderson v. Dist. Bd. of Trustees of Cent. Fl. Comm. Coll., 77 F.3d 364, 366 (11th Cir.1996) (\"[Plaintiff's] complaint is a perfect example of 'shotgun' pleading in that it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.”) (internal citation omitted); Pelletier v. Zweifel, 921 F.2d 1465, (11th Cir.1991) (describing \"quintessential shotgun pleadings” complete with \"rambling recitations” and \"factual allegations that could not possibly be material” that force the \"district court [to] sift through the facts presented and decide for [itself] which were material to the particular cause of action asserted”). .Indeed, the aggregate negative effects of shotgun pleadings on trial courts have been noted with great concern by this court. See, e.g., Byrne, 261 F.3d at 1131 (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice. The time a court spends managing litigation framed by shotgun pleadings should be devoted to other cases waiting to be heard.”); Crarner v. Florida, 117 F.3d 1258, 1263 (11th Cir.1997) (noting that ''[s]hotgun pleadings ... exact an intolerable toll on the trial court's docket\"); Ebrahimi v. City of Huntsville Bd. of" }, { "docid": "22112623", "title": "", "text": "issues that ought to be presented to the courts for clarification, and to stabilize the rule of law, are removed to non-judicial fora for resolution, the public bears the cost — in the form of more litigation and a judiciary unable to handle it. Fifth, in Title VII cases, shotgun pleadings undercut the purpose of Congress’s enactment of Title VII — to bring peace and equity to the workplace. It requires no subtle analysis to conclude that the wrangling and pure bitterness these pleadings engender does not foster good employer-employee relationships. C. What happened in this case was easily avoidable — by a straightforward application of the Rules of Civil Procedure. First, defense counsel, faced with a complaint purporting to combine in one count multiple claims of eight plaintiffs, should have moved the court for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). The court would have granted the motion — “[w]here, as here, the plaintiff asserts multiple claims for relief, a more definite statement, if properly drawn, will present each claim for relief in a separate count, as required by Rule 10(b).” Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir.1996). But counsel chose to reply in kind — by fashioning affirmative defenses that failed to respond explicitly to the specific claims plaintiffs were independently asserting. In light of defense counsel’s failure to request a repleader, “the court, acting sua sponte, should have struck the plaintiffs complaint, and the defendants’ answer, and instructed plaintiffs counsel to file a more definite statement.” Id. at 367. The necessity for doing so should have become starkly apparent on reading the complaint. The need for intervention was necessary for another reason, apart from the mess the shotgun pleadings were creating: plaintiffs’ initial complaint, like its successors, appeared to allege a class action. Where a complaint alleges that the employer is engaging in a pattern or practice of race discrimination against a class of similarly situated employees and seeks declaratory and injunctive relief, the court must determine without delay whether plaintiffs are" }, { "docid": "19602497", "title": "", "text": "them stated a claim for relief. The amended complaint is incomprehensible. Were we to parse the amended complaint in search of a potentially valid claim, we would give the appearance of lawyering for one side of the controversy and, in the process, cast our impartiality in doubt. All Defendants were represented by one lawyer and filed one joint brief. See also Weiland v. Palm Beach Cty. Sheriff's Office , 792 F.3d 1313, 1321 (11th Cir. 2015) (canvassing this Court's \"thirty-year salvo of criticism aimed at shotgun pleadings\" and observing \"there is no ceasefire in sight\"); Paylor v. Hartford Fire Ins. Co. , 748 F.3d 1117, 1125 n.2 (11th Cir. 2014) (citing twenty-one published opinions condemning shotgun pleadings); Davis v. Coca-Cola Bottling Co. , 516 F.3d 955, 979 n.54 (11th Cir. 2008) (\"[S]ince 1985 we have explicitly condemned shotgun pleadings upward of fifty times.\"); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp. , 305 F.3d 1293, 1295 n.9 (11th Cir. 2002) (\"This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay.\"). See Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll. , 77 F.3d 364, 367 (11th Cir. 1996) (\"Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.\"). In Byrne v. Nezhat , 261 F.3d 1075 (11th Cir. 2001), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co. , 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), we explained: Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice. ... Wasting scarce judicial and parajudicial resources impedes the due administration of justice and, in a very real sense, amounts to obstruction of justice. Although obstruction of justice is typically discussed in the context of criminal contempt, the concept informs the rules of law-both substantive and procedural-that have been devised to protect the courts and litigants" }, { "docid": "11186982", "title": "", "text": "Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998). In this case our task is a daunting one. The complaint is a quintessential “shotgun” pleading of the kind we have condemned repeatedly, beginning at least as early as 1991. It is in no sense the “short and plain statement of the claim” required by Rule 8 of the Federal Rules of Civil Procedure. Fed.R.CivP. 8(a)(2). It is fifty-eight pages long. It names fourteen defendants, and all defendants are charged in each count. The complaint is replete with allegations that “the defendants” engaged in certain conduct, making no distinction among the fourteen defendants charged, though geographic and temporal realities make plain that all of the defendants could not have participated in every act complained of. Each count incorporates by reference the allegations made in a section entitled “General Factual Allegations” — which comprises 146 numbered paragraphs — while also incorporating the allegations of any count or counts that precede it. The result is that each count is replete with factual allegations that could not possibly be material to that specific count, and that any allegations that are material are buried beneath innumerable pages of rambling irrelevancies. This type of pleading completely disregards Rule 10(b)’s requirement that discrete claims should be plead in separate counts, see Anderson v. Dist. Bd. of Tr., 77 F.3d 364, 366-67 (11th Cir.1996), and is the type of complaint that we have criticized time and again. See, e.g., BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326-27 n. 6 (11th Cir.1998); GJR Invs., Inc., 132 F.3d at 1368; Pelletier v. Zweifel, 921 F.2d 1465, 1518-19 (11th Cir.l991). In the past when faced with complaints like this one, we have vacated judgments and remanded with instructions that the district court require plaintiffs to replead their claims. See Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 910 (11th Cir.1996). That is the appropriate disposition here. We are unwilling to address and decide serious constitutional issues on the basis of this complaint. We could perhaps decide whether some of these claims were subject to" }, { "docid": "6749179", "title": "", "text": "F.Supp. 365, 368 (E.D.Pa.1996) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1376 (1990)); see Murray v. Gencorp, Inc., 979 F.Supp. 1045, 1050-51 (E.D.Pa.1997); Wood & Locker, Inc. v. Doran & Assocs., 708 F.Supp. 684, 691 (W.D.Pa.1989); Lincoln Labs., Inc. v. Savage Labs., Inc., 26 F.R.D. 141, 143 (D.Del.1960). Examples where this standard has been met are where the allegations of a complaint are not sufficiently specific to enable a defendant to determine the propriety of interposing in his answer a waivable defense, see Lunderstadt v. Colafella, 885 F.2d 66, 68-69 (3d Cir.1989); Murray, 979 F.Supp. at 1051, or where, in the absence of certain information peculiarly within the knowledge of the plaintiff, the defendant cannot, in good faith, answer the complaint with a general denial, see Lincoln Labs., 26 F.R.D. at 143. Motions for a more definite statement are also an appropriate vehicle to pare down “shotgun” pleadings. By requiring more definiteness, issue may be joined on particular claims, discrete defenses can be interposed in discrete fashion, and the litigation may be made more manageable, through more controlled discovery, to the benefit of the litigants and the district court alike. See Anderson v. Dist. Bd. of Trustees of Cent. Fla. Community Coll., 77 F.3d 364, 366-67 (11th Cir.1996); Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir.2001); cf. Microtron Corp. v. Minn. Mining & Mfg. Co., 269 F.Supp. 22, 26 (D.N.J.1967). Defendants ask that the Court require Plaintiffs to specify (1) all of the restaurants that allegedly have ADA violations; (2) the date(s) when the plaintiffs encountered those violations at each restaurant; (3) what the particular violations are at each restaurant; (4) what problems were encountered on each visit and the damages from that encounter; and (5) what each plaintiffs disabilities are. (Def. McDonald’s Brief Supp. Mot. More Def. Stmt, at 1.) Plaintiffs resist Defendants’ motion with several arguments. Plaintiffs maintain that their claims are intelligible, that they have satisfied the notice pleading requirements of Rule 8(a)(2), that they need not plead with the particularity required by Rule 9(b) in the absence of" } ]

[ { "docid": "14201087", "title": "", "text": "both of these occasions the union informed respondent that a majority of its employees had signed union cards. There was no necessity for the union to offer proof of the genuineness of its majority claim absent a challenge by respondent.” 211 F.2d 206, 210. The Board had more than ample evidence before it to sustain its findings that Skyline Homes engaged in interrogation and warning of its employees in violation of Section 8(a) (1); and it could scarcely have reached any conclusion other than that there was a wrongful refusal to bargain. Cf. N. L. R. B. v. Bonham Cotton Mills, Inc., 5th Cir., 1961, 289 F.2d 903. So also we find no basis for Skyline Homes’ contention that the lapse of time since the filing of the original charges entitle it to an election. An employer will not be permitted to dissipate the union’s majority by a series of Section 8(a) (1) violations and then demand that an election be held. Franks Bros. Co. v. N. L. R. B., 321 U.S. 702, 64 S.Ct. 817, 819, 88 L.Ed. 1020; N. L. R. B. v. Philamon Laboratories, Inc., supra, 298 F.2d at 181-183; Smith Transfer Co. v. N. L. R. B., 5th Cir., 1953, 204 F.2d 738; see N. L. R. B. v. Southeastern Rubber Mfg. Co., supra, 213 F.2d at 15; N. L. R. B. v. Poultry Enterprises, Inc., supra, 207 F.2d at 525; Joy Silk Mills v. N. L. R. B., 1950, 87 U.S.App. D.C. 360, 185 F.2d 732, cert. den., 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350. Finally, we reject the petitioner’s contention that Overman, without, authority or authorization to negotiate, was in no position to make a demand upon the union for proof of its majority status. He was the resident manager; he took it upon himself to discuss organizational affairs with the union at some length; he acted as a conduit through which the meagre communications between the union and the company passed. In any event someone with authority should have made this point with the union if it was to be asserted." } ]

[ { "docid": "3679343", "title": "", "text": "NLRB, 125 U.S.App.D.C. 389, 373 F.2d 655 (1967). The Company’s contention in the instant case that the General Counsel bears the threshold burden of proving the Unions’ majority status is clearly without merit. See NLRB v. John S. Swift Co., 302 F.2d 342 (7 Cir. 1962). . Stoner Rubber Co., supra note 2, at 1445; accord, NLRB v. John S. Swift Co., supra note 3. . See cases cited in note 4 supra. . NLRB v. Downtown Bakery Corp., supra note 3; Lloyd McKee Motors, Inc., 170 N.L.R.B. No. 140 (1968); see, e.g., Bally Case & Cooler, Inc., supra note 3; Convair Div. of Gen. Dynamics Corp., 169 N.L.R.B. No. 26 (1968); Celanese Corp., supra note 2, cited with approval in Brooks v. NLRB, 348 U.S. 96, 104, 75 S.Ct. 176, 99 L.Ed. 125, n.18 (1954). Of course, different rules apply when the charge is refusal to bargain with an uncertified union. In that case, a violation must be predicated upon two findings : that a majority of the unit have freely designated the union as bargaining agent, and that the company’s denial of recognition is not in good faith. Amalgamated Clothing Workers of America AFL-CIO v. NLRB, 124 U.S.App.D.C. 365, 365 F.2d 898 (1966). Consequently, an employer’s motivations become relevant only if in fact the union represents a majority. NLRB v. Arkansas Grain Corp., 390 F.2d 824 (8 Cir. 1968); NLRB v. S. E. Nichols Co., 380 F.2d 438 (2 Cir. 1967). . 362 F.2d at 592. . The checkoff rate may take on importance in other contexts as well. Compare NLRB v. Howe Scale Co., 311 F.2d 502, 505 (7 Cir. 1963), where a high percentage of voluntary checkoffs was held to be evidence of a loch of reasonable doubt concerning majority status. . The Company on a number of occasions questioned the Unions’ majority status, but no Union official responded to the challenges. In addition, the International’s president in pressing his demand for a union security clause during the 1965 negotiations, insisted that it was a union’s only hope of building itself up to majority status. ." }, { "docid": "2608418", "title": "", "text": "the employees’ freedom of choice which such post-election benefits may have, particularly where a second election is ordered. For these reasons we feel that such benefits plainly violate Section 8 (a) (1). Cedartown Yarn Mills, Inc., 84 N.L.R.B. 1, 8, enforced per curiam, Cedartown Yarn Mills, Inc. v. N. L. R. B. 180 F.2d 579 (5th Cir. 1950); The Hills Brothers Company, 67 N.L.R.B. 1249, 1255, enforced per curiam, N. L. R. B. v. Hills Bros. Co., 161 F.2d 179 (5th Cir. 1947); Northwest Engineering Company, 148 N.L.R.B. 1136, 1144-45 (1964). See also Amalgamated Clothing Workers v. N. L. R. B., 345 F.2d 264, 266 (2d Cir. 1965) (half a day off without loss of pay to celebrate defeat of union). SECTION 8(a) (5) — REFUSAL TO BARGAIN. The Board found that Respondent violated Section 8(a) (5) of the Act by refusing to recognize and bargain with the Union as the authorized collective bargaining representative of a majority of its employees. The Respondent, despite the uncontradicted evidence that the Union represented an overwhelming majority of its employees, persistently demanded that the representation question be determined through the process of a Board conducted election. Respondent, however, has no such vested right to an election. Where a labor organization has been designated by a majority of the eligible employees as their representative in an appropriate bargaining unit, the employer must recognize and bargain with such an organization, irrespective of whether or not it has been certified by the Board as the result of an election. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 72, 76 S.Ct. 559, 100 L.Ed. 941 (1956); Colson Corporation v. N. L. R. B., 347 F.2d 128, 135 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965); N. L. R. B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir. 1962), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962). If, however, there had been substantial evidence to show that Respondent doubted in good faith that the Union represented a majority of its" }, { "docid": "14895406", "title": "", "text": "the Board’s findings of fact (especially those relating to credibility), and most of the Board’s legal findings, are clearly supported by substantial evidence based on the record considered as a whole. Thus, we affirm the Board’s judgment and remedies except as outlined below. A. Findings of Unfair Labor Practices I. The Section 8(a)(1) Violations Section 7 of the NLRA, 29 U.S.C. § 157 (1982), guarantees employees “the right to self-organization, ... to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection. ...” Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1) (1982), implements this guarantee by making it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7....” An employer may not interfere with employee organizational activities by threatening to close his plant. Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274 n. 20, 85 S.Ct. 994, 1001 n. 20, 13 L.Ed.2d 827 (1965). In particular, an employer violates section 8(a)(1) of the Act by threatening to close a facility if the employees select the Union as their collective bargaining repre sentative, Southwire Co. v. NLRB, 820 F.2d 453, 457 (D.C.Cir.1987); by threatening to discharge employees for engaging in union activities, id.; by threatening to refuse to bargain in good faith with a duly certified union, id.; by interrogating employees about their union activities, Midwest Regional Joint Bd. v. NLRB, 564 F.2d 434, 443 (D.C.Cir.1977); Joy Silk Mills, Inc. v. NLRB, 185 F.2d 732, 740 (D.C.Cir.1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951); by conditioning the reinstatement of strikers upon the waiver of their section 7 rights, American Cyanamid Co. v. NLRB, 592 F.2d 356, 361-63 (7th Cir.1979); and by assisting in the preparation and circulation of an antiunion petition, NLRB v. Birmingham Publishing Co., 262 F.2d 2, 7-8 (5th Cir.1959). There is no doubt that substantial evidence supports the NLRB findings here that Terminal Manager McGalliard and Assistant Terminal Manager Dickenson" }, { "docid": "12197505", "title": "", "text": "917, 920 (6th Cir. 1965): NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750, 754 (6th Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965). . ' There are also spaces provided for the date, social security number, job, employee’s address and the Company’s name and location. The complete text of the reverse side of the card is: “have voluntarily accepted membership in Local Union of the AMALGAMATED CLOTHING WORKERS OF AMERICA (AFL-CIO), and designate said Union as my bargaining agency in all matters pertaining to wages, hours and other conditions of employment, I hereby authorize my employer (the above named company) to deduct from my wages my dues and initiation fee due to said Union. This authority to make such deduction shall be irrevocable for the period of one year or until the termination date of the collective bargaining agreement between my Employer and the Union whichever occurs sooner, and I agree and direct that this authorization shall be automatically renewed and shall be irrevocable for successive periods of one year each or for the period of each succeeding collective bargaining agreement between my Employer and the Union whichever shall be shorter, unless written notice is given by me to the Employer and the Union not more than twenty (20) days and not less than 10 days prior to the expiration of each period of one year or of each collective bargaining agreement between my Employer and the Union, whichever occurs sooner. If a new worker: this authorization' becomes effective at the end of my trial period.” . See NLRB v. H. Rohtstein & Co., 266 F.2d 407, 409 (1st Cir. 1959); Freeport Marble & The Co., 153 N.L.R.B. #63 (1965). . Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 369, 185 F.2d 732, 741 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951) ; NLRB v. Taitel, 261 F.2d 1 (7th Cir. 1958), cert. denied, 359 U.S. 944, 79 S.Ct. 725, 3 L.Ed.2d 677 (1959). . See, e. g., Surprenant Mfg. Co., 144 N.L.R.B. 507, 510-511 (1963) ; Rea Construction" }, { "docid": "12486281", "title": "", "text": "was formed or recognized as representative of the employees.” Clearly, such is not the case. There is abundant testimony indicating that Bauer intended for his employees to present their grievances through the Committee and that the Committee suggested and was responsible for many improvements in “conditions of work”. As already indicated, the Committee was the impetus directly responsible for purchasing new equipment, for increasing the effectiveness of existing equipment, etc. The employees’ “grievance” concerning the discharge of a fellow employee was also cleared up in a Committee meeting. The tests for a violation of § 8(a) (2) have been met herein. N. L. R. B. v. Cabot Carbon Co., 1959, 360 U.S. 203, 210-213, 79 S.Ct. 1015, 3 L.Ed.2d 1175; N. L. R. B. v. C. Nelson Mfg. Co., 8 Cir., 1941, 120 F.2d 444, 445. Viewed as a whole, all of petitioner’s activities together clearly indicate an overriding union animus and establish a violation of § 8(a) (1) of the Act. The employees’ rights to organize were hampered by both improper threats and allurements. N. L. R. B. v. Douglas & Lomason Co., 8 Cir., 1964, 333 F.2d 510, 514; Joy Silk Mills, Inc. v. N. L. R. B., D.C.Cir., 1950, 87 U.S.App.D.C. 360, 185 F.2d 732, 739, certiorari denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350. Adopting the reasoning set out in f. n. 2, supra, it is evident that Barnes and Schauls were a part of management and were acting on behalf of management in circulating the anti-Union petition in October of 1964. See Colson Corp. v. N. L. R. B., 8 Cir., 1965, 347 F.2d 128, 137, certiorari denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157. The § 8(a) (1) violations need no further discussion. Turning to the § 8(a) (5) violation, we initially find no fault with the Board’s holding that the authorization cards per se, presented by the Union to support its demand for recognition, did clearly and unambiguously authorize the Union to represent the signers for the purpose of collective bargaining. However, we do not agree with the Board" }, { "docid": "14239870", "title": "", "text": "employees. The Board, adopting the decision of its trial examiner, correctly ruled that Edro had violated Section 8(a) (1) by interrogating its employees in a coercive manner, by threatening them with reprisals if the union won, by promising them benefits if the union lost, by granting them benefits when the union did lose, and by inhibiting recourse to the Board for relief against unfair labor practices. E.g., NLRB v. Philamon Labs., Inc., 298 F.2d 176 (2 Cir.), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575 (2 Cir.1954); Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). The Board also ruled correctly that Edro had violated Sections 8(a) (5) and (1) by refusing in bad faith to bargain with Amalgamated prior to the election. E.g., Edward Fields, Inc. v. NLRB, 325 F.2d 754, 760-61 (2 Cir. 1963); NLRB v. Philamon Labs, Inc., supra; Joy Silk Mills, Inc. v. NLRB, supra. The Board ordered Edro to cease and desist from threatening its employees with removal of the plant if Amalgamated should win an election; from unlawfully interrogating its employees with regard to their unionism; from promising benefits to its employees in order to discourage membership in Amalgamated; and from otherwise violating Section 8(a) (1) of the Act. The Board also ordered Edro to bargain collectively with Amalgamated upon the union’s request, and to post the customary notices for sixty days. Edro objects to the Board’s order that it bargain with Amalgamated, on the ground that the union never represented an uncoerced majority of its employees. The company claims that the union obtained the authorization cards by misrepresenting to its employees that the union already enjoyed majority support. We assume for the sake of the argument that such a falsehood would void the authorizations. Nevertheless, we cannot find in the record any intelligible evidence that the union organizers, falsely or otherwise, told employees whose signatures were being sought that Amalgamated already had majority" }, { "docid": "12197234", "title": "", "text": "petition and issued the complaint in this action. The Trial Examiner found that the co-op students should not be part of an appropriate bargaining unit and that the union represented a majority of workers in an appropriate unit at the time of the recognition demand. He found that petitioner did not recognize the union in order to gain time “to subvert the Union’s majority, to thwart unionization, and to avoid collective bargaining.” Therefore he found that Colecraft violated § 8(a) (5) and recommended that the Board order Colecraft to bargain with the union, following the Joy Silk-Mills doctrine. Joy Silk Mills, Inc., 85 NLRB 1263, enforced as modified, Joy Silk Mills v. N. L. R. B., 87 U.S.App.D.C. 360, 185 F.2d 732, cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1950). The Examiner also found that Ostrowski’s discharge violated §§ 8(a) (1) and (3) and that the discharge was the cause of the strike. Accordingly, he found that the refusal to reinstate strikers was a violation of § 8(a) (3) and recommended that the company be ordered to offer to reinstate the discharged workers and to give them back pay. He also found that various instances of employer conduct constituted § 8(a) (1) violations which rendered it impossible to hold a coercion-free election among the employees. The Board accepted the Trial Examiner’s findings and adopted the recommended order with minor modifications not relevant here. Because we find that there is not substantial evidence in the record as a whole to support the Board’s findings that petitioner violated § 8(a) (5) of the Act by refusing to recognize and bargain with the union, that Ostrowski’s discharge violated § 8(a) (3) and that the three incidents enumerated below violated § 8 (a) (1), we remand to the Board to determine whether or not a bargaining order is justified by those unfair labor practices as to which we find there was substantial evidence, and we enforce the Board’s order in all other respects. The § 8(a) (1) Charges The Board found ten instances in which conduct of the management and" }, { "docid": "12197506", "title": "", "text": "each or for the period of each succeeding collective bargaining agreement between my Employer and the Union whichever shall be shorter, unless written notice is given by me to the Employer and the Union not more than twenty (20) days and not less than 10 days prior to the expiration of each period of one year or of each collective bargaining agreement between my Employer and the Union, whichever occurs sooner. If a new worker: this authorization' becomes effective at the end of my trial period.” . See NLRB v. H. Rohtstein & Co., 266 F.2d 407, 409 (1st Cir. 1959); Freeport Marble & The Co., 153 N.L.R.B. #63 (1965). . Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 369, 185 F.2d 732, 741 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951) ; NLRB v. Taitel, 261 F.2d 1 (7th Cir. 1958), cert. denied, 359 U.S. 944, 79 S.Ct. 725, 3 L.Ed.2d 677 (1959). . See, e. g., Surprenant Mfg. Co., 144 N.L.R.B. 507, 510-511 (1963) ; Rea Construction Co., 137 N.L.R.B. 1769, 1774, 1777 (1962); White Oak Acres, Inc., 134 N.L.R.B. 1145 (1961). . See Surprenant Mfg. Co. v. NLRB, 341 F.2d 756, 760 (6th Cir. 1965); NLRB v. Threads, Inc., 308 F.2d 1, 9 (4th Cir. 1962), accord Wellington Mill Div., West Pt. Mfg. Co. v. NLRB, 330 F.2d 579, 583 (4th Cir.), cert. denied, 379 U.S. 882, 85 S.Ct. 144, 13 L.Ed.2d 88 (1964). . “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” 61 Stat. 142 (1947), 29 U.S.C. § 158(c). . See NLRB v. Southwire Co., 352 F.2d 346, 348 (5th Cir. 1965). . The Fourth Circuit has held similar statements “unqualifiedly privileged under the provisions of section 8(c) of the Act.” Wellington Mill, supra note 24, 330 F.2d at 583. Other circuits have upheld" }, { "docid": "21336020", "title": "", "text": "the Board introduced evidence which showed that the company in fact declined recognition and that a majority of the employees had in fact signed union authorization cards. The company in turn advanced the contention that its refusal was based on a good faith doubt as to the union’s majority status. When some credible basis for a good faith doubt is advanced by the company, the General Counsel has the burden of establishing that the refusal was in fact improperly motivated. This can be done, for example, by pointing to evidence from which it can be inferred that the delay was designed to give the employer an opportunity to dissipate and undermine the union’s strength. See, e. g., Skyline Homes, Inc. v. NLRB, supra, at 649; NLRB v. Southeastern Rubber Mfg. Co., 213 F.2d 11, 15 (5 Cir. 1954); Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732, 741 (1950). The Board has recognized that the ultimate burden in these cases lies with the General Counsel. See Sunset Lumber Prods., 113 NLRB 1172, 1175. In weighing the factors which are relevant in determining the presence or absence of a good faith doubt, we must be mindful of the dilemmas in which both the employer and the union may find themselves when the union makes a demand for recognition prior to an election. The union, if it cannot obtain recognition as soon as it is satisfied that it represents a valid majority, must suffer the delay of an election with, in some cases, the possible attendant threat that employer unfair labor practices will influence the outcome. Surely recognition is a more desirable alternative than an unfair labor practice proceeding which may come too late to serve the union’s purposes at all. On the other hand, the company must have some method by which it can test the validity of the union’s claim to majority status if it entertains a good faith belief that the union does not or could not have a majority. Although the company has a right to interrogate employees for purely informational purposes, such a course" }, { "docid": "12947664", "title": "", "text": "61 Stat. 136 (1947), as amended, 29 U.S.C. §§ 151-168 (1964). . Refusal to bargain with a union that possesses valid authorization cards of a majority of the employees in a unit, and insistence upon an election, when the ' action is motivated not by a good faith doubt as to the union’s majority status but rather by a desire to obtain time in which to undermine the union, is a violation of § 8(a) (5). Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951); International Union of Elec. Workers (S.N.C. Mfg. Co.) v. NLRB, 122 U.S.App. D.C. 145, 352 F.2d 361, cert. denied 382 U.S. 902, 86 S.Ct. 235, 15 L.Ed.2d 155 (1965). . In addition there were four challenged ballots, two of which had been cast by employees discharged by the Company for reasons the Board found to have been in violation of § 8(a) (3). . The following is a facsimile of the card: . As we said in Joy Silk Mills, supra. [A]n employee’s thoughts (or afterthoughts) as to why he signed a union card, and what he thought that card meant, cannot negative the overt action of having signed a card designating a union as bargaining agent. [87 U.S. App.D.C. at 371, 185 F.2d at 743.] The card here is identical to that in Glasgow, and substantially similar to that in Peterson. It is plainly less objectionable than the card underlying the Board’s order which we enforced in International Union of Elec. Workers (S.N.C. Mfg. Co.) v. NLRB, supra note 2. . 29 U.S.C. § 160(b) (1964). . The Board also stated: “Moreover, even if the 10(b) period of limitations were fatal to an 8(a) (5) finding, an affirmative bargaining order would be appropriate to remedy the 8(a) (1) violations found herein, and to restore the status quo ante.” 149 N.L.R.B. 1283, 1285 n. 3. This point is also well taken. See Local 152 v. NLRB, 120 U.S.App.D.C. 25, 27, 343 F.2d 307, 309 (1965); NLRB v. Delight Bakery," }, { "docid": "12197233", "title": "", "text": "the union argued for inclusion of the co-op students in the bargaining unit. December 6 the Regional Director ruled that the appropriate unit did not include the students and an election was scheduled. During the strike thirteen workers received letters informing them that they had been permanently replaced. On December 18, the strike ended and the union sent a telegram to petitioner on behalf of its employees offering their unconditional return to work. Coleeraft subsequently offered to reinstate all of the workers who had struck with the exception of those who had received replacement letters and William Palumbo, who had told Norman Cole that he would advise the company of the results of his Armed Forces physical examination. On December 20, after the strike but prior to the scheduled election, the union amended the unfair labor practice charges pending before the Board to allege a § 8(a) (5) violation in petitioner’s refusal to recognize the union at the time of the November 5 demand. The Regional Director dismissed on his own motion the employer’s election petition and issued the complaint in this action. The Trial Examiner found that the co-op students should not be part of an appropriate bargaining unit and that the union represented a majority of workers in an appropriate unit at the time of the recognition demand. He found that petitioner did not recognize the union in order to gain time “to subvert the Union’s majority, to thwart unionization, and to avoid collective bargaining.” Therefore he found that Colecraft violated § 8(a) (5) and recommended that the Board order Colecraft to bargain with the union, following the Joy Silk-Mills doctrine. Joy Silk Mills, Inc., 85 NLRB 1263, enforced as modified, Joy Silk Mills v. N. L. R. B., 87 U.S.App.D.C. 360, 185 F.2d 732, cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1950). The Examiner also found that Ostrowski’s discharge violated §§ 8(a) (1) and (3) and that the discharge was the cause of the strike. Accordingly, he found that the refusal to reinstate strikers was a violation of § 8(a) (3) and recommended" }, { "docid": "21336019", "title": "", "text": "sympathies. The company concluded that they would not have signed union cards in the absence of coercion by union personnel. Clearly an employer may not demand a Board-supervised election in all cases to determine whether or not the union which purports to represent a majority of the employees does in fact have majority status. An uncertified union which represents a majority of its employees is entitled to recognition unless the employer entertains a good faith doubt as to its majority status. See, e. g., Skyline Homes, Inc. v. NLRB, 323 F.2d 642, 647-48 (5 Cir. 1963), cert. denied, 376 U.S. 909, 84 S.Ct. 662, 11 L.Ed.2d 607; NLRB v. Dan River Mills, Inc., 274 F.2d 381, 386-389 (5 Cir. 1960). When the General Counsel charges that an employer has committed an unfair labor practice, he must produce substantial evidence from which it may be inferred that a violation of the Act took place. Therefore, the burden of establishing a refusal to bargain in good faith rests initially with the General Counsel. In the instant case the Board introduced evidence which showed that the company in fact declined recognition and that a majority of the employees had in fact signed union authorization cards. The company in turn advanced the contention that its refusal was based on a good faith doubt as to the union’s majority status. When some credible basis for a good faith doubt is advanced by the company, the General Counsel has the burden of establishing that the refusal was in fact improperly motivated. This can be done, for example, by pointing to evidence from which it can be inferred that the delay was designed to give the employer an opportunity to dissipate and undermine the union’s strength. See, e. g., Skyline Homes, Inc. v. NLRB, supra, at 649; NLRB v. Southeastern Rubber Mfg. Co., 213 F.2d 11, 15 (5 Cir. 1954); Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732, 741 (1950). The Board has recognized that the ultimate burden in these cases lies with the General Counsel. See Sunset Lumber Prods., 113 NLRB 1172," }, { "docid": "23515776", "title": "", "text": "In our instant case we find that the findings of fact of the National Labor Relations Board were supported by substantial evidence; that respondents did not have appropriate grounds for a good-faith doubt as to the union’s majority status; that respondent violated Section 8(a) (5) and (1) of the Act in refusing to bargain with the union. N. L. R. B. v. Winn-Dixie Stores, Inc., supra; N. L. R. B. v. Gorbea, Perez & Morell, S. En C., supra; Joy Silk Mills v. N. L. R. B., supra; N .L. R. B. v. Consolidated Machine Tool Corp., supra. Enforcement of the order of the Board is hereby granted. . Boot & Shoe Workers Union, AFL-CIO. “3. The record indicates that the testimony to this effect consisted of affirmative responses by the signatories to leading questions propounded by Respondent’s counsel, upon cross-examination, as to whether they were told that the purpose of the cards was to secure an election. We do not deem such testimony sufficient to controvert the statement of the purpose and effect of such cards contained on the face thereof, nor do we consider it inconsistent with an understanding that the cards served the dual purpose of designating a representative and of securing an election.” “4. In the Englewood Lumber case the solicitor explained to almost all the employees that the cards were only for the purpose of securing a Board election and thereby secured many signatures, including those of two employees whose hostility to the designated union was open and notorious and explicitly communicated to the solicitor. Cf. also, Morris & Associates, Inc., 138 NLRB 1160, 1164.” “6. Joy Silk Mills v. N. L. R. B. [87 U.S.App.D.C. 360], 185 F.2d 732, cert. denied, 341 U.S. 914 [71 S.Ct. 734, 95 L.Ed. 1350].” “7. Member Brown joins in this finding because, in his opinion, the best evidence of employees’ intent, i. e., their signature to cards designating the Union as their bargaining agent, establishes the majority status of the Union at the time it requested recognition. He believes it unnecessary and inappropriate to consider any representations the" }, { "docid": "12536520", "title": "", "text": "record. Because of the ambiguity in the stipulation, we do not hold the Board concluded on the issue of whether Parker, Smith, and Reese, who were reinstated, also told Wortham prior to their reinstatement. . See Nix v. NLRB, 418 F.2d 1001, 1008 (5th Cir. 1969) ; Acme Products, Inc. v. NLRB, 389 F.2d 104, 106 (8th Cir. 1968) Amco Electric v. NLRB, 358 F.2d 370, 373 (9th Cir. 1966) ; Joy Silk Mills v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). . NLRB v. Marcus Trucking Co., 286 F.2d 583 (2d Cir. 1961). See also NLRB v. C. Malone Trucking Inc., 278 F.2d 92 (1st Cir. 1960) ; NLRB v. Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952). . See NLRB v. Brown & Root, 132 NLRB 486 (1961), enforced 311 F.2d 447 (8th Cir. 3963) ; American Flint Glass Workers’ Union v. NLRB, 97 U.S.App.D.C. 244, 230 F.2d 212, cert. denied, 351 U.S. 988, 76 S.Ct. 1047, 100 L.Ed. 3501 (1956) ; Chauffeurs, Teamsters & Helpers “General” Local No. 200 A.F.L. v. NLRB, 233 F.2d 233 (7th Cir. 1956) ; Sax v. NLRB, 171 F.2d 769, 771 (7th Cir. 1948) ; Hot Shoppes, Inc., 146 NLRB 802 (1964) ; Texas Boot Mfg. Co., 143 NLRB 264 (1963). . Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). . 29 U.S.C. § 152(3) (1970). In Fleet-wood, the Supreme Court had held that an employer’s refusal to reinstate former strikers to positions which became available because of an expansion of the business after the strike constituted an unfair labor practice under Sections 8(a) (1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3). In Laidlaw, the Board extended this principle to failures to offer reinstatement to positions available because of post-strike departures of replacements permanently hired during the strike. . NLRB v. Laidlaw Corp., 414 F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970) ; American Machinery Corp. v. NLRB," }, { "docid": "1428549", "title": "", "text": "Union on the basis of authorization cards was an unfair labor practice under section 8(a) (5) where the Union had lost a valid election within the previous year. While section 9(a) is silent as to the appropriateness or relative merits of the various means of choosing a bargaining agent, the Board and the courts have, in certain factual situations, made some distinctions between elections and less formal means of selection for purposes of section 8(a) (5). For example, an employer may be ordered to bargain with a union without an election where he has sought to use the election process to gain time to dissipate the union’s majority status. Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). On the other hand, where an employer is presented with conflicting representation claims of rival unions, none of which are certified, it may not recognize any of them until an NLRB election has been held. Midwest Piping & Supply Co., 63 N.L.R.B. 1060, 1070 (1945); Barney Wilkerson Constr. Co., 145 N.L.R.B. 704, 705 (1964). The Board has imposed the Midwest Piping doctrine on an employer even where one of the competing unions had a majority of authorization cards. Novak Logging Co., 119 N.L.R.B. 1573, 1574-75 (1958). See also St. Louis Independent Packing Co. v. NLRB, 291 F.2d 700 (7th Cir. 1961). In a related line of cases the Board and the courts have, after conflicting representation determinations, preferred election results over less formal means or vice versa, depending on the facts of the particular case. Where a union became defunct during its certification year, for instance, the Board has held that a subsequent showing of majority through authorization cards subjected the employer to a duty to bargain, despite the one-year certification rule. Rocky Mountain Phosphates, Inc., 138 N.L.R.B. 292, 295 (1962). In other circumstances, the courts have held that election results prevailed over subsequent less formal determinations of majority status. Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954); NLRB v. Blades" }, { "docid": "14239869", "title": "", "text": "various employees which way they were going to vote, warned them that the plant would be shut down if the union won, and promised them that if the union lost their wages would be raised $1 per hour and they would receive free insurance. Union officials did not learn of these activities until after the election. On February 4, 1963, Amalgamated was voted down by a decisive margin. Edro permitted its employees to celebrate the returns for an entire afternoon without loss of pay. Amalgamated then renewed its charge before the Board that Edro had refused to bargain prior to the election, in violation of Section 8(a) (5) of the Act; and it added a charge that the company had interfered with its employees’ rights to unionize, in violation of Section 8(a) (1). Outside the courtroom at a subsequent hearing before the trial examiner, Anasco’s general manager told an employee that she was going to strike one of the Board’s witnesses, and later she attempted to carry out her threat in the presence of other employees. The Board, adopting the decision of its trial examiner, correctly ruled that Edro had violated Section 8(a) (1) by interrogating its employees in a coercive manner, by threatening them with reprisals if the union won, by promising them benefits if the union lost, by granting them benefits when the union did lose, and by inhibiting recourse to the Board for relief against unfair labor practices. E.g., NLRB v. Philamon Labs., Inc., 298 F.2d 176 (2 Cir.), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575 (2 Cir.1954); Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). The Board also ruled correctly that Edro had violated Sections 8(a) (5) and (1) by refusing in bad faith to bargain with Amalgamated prior to the election. E.g., Edward Fields, Inc. v. NLRB, 325 F.2d 754, 760-61 (2 Cir. 1963); NLRB v. Philamon Labs, Inc., supra; Joy Silk Mills," }, { "docid": "12947663", "title": "", "text": "determining the application of the Act, where the complaint does not charge Company domination of a union or efforts to further the cause of a particular union. V. The Board ordered the Company to reinstate four employees it found to have been discharged to discourage union membership. The Company disputes the findings as to each. The Union asserts that the Board should have found that an additional employee had been so discharged. We are satisfied that the Board's conclusions are supported by substantial evidence. We have considered the Union’s assertion that the Company committed additional Section 8(a) (1) violations through the activity of a test pilot who officiously spied upon some organizational meetings. Since there is substantial evidence supporting the Board, its resolution of this question must stand. We have also considered the other numerous objections of the Company and do not find them persuasive, separately or together. The Union’s petition for review is denied. The Board’s petition for enforcement of its order is granted. It is so ordered. . 49 Stat. 449 (1935) and 61 Stat. 136 (1947), as amended, 29 U.S.C. §§ 151-168 (1964). . Refusal to bargain with a union that possesses valid authorization cards of a majority of the employees in a unit, and insistence upon an election, when the ' action is motivated not by a good faith doubt as to the union’s majority status but rather by a desire to obtain time in which to undermine the union, is a violation of § 8(a) (5). Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951); International Union of Elec. Workers (S.N.C. Mfg. Co.) v. NLRB, 122 U.S.App. D.C. 145, 352 F.2d 361, cert. denied 382 U.S. 902, 86 S.Ct. 235, 15 L.Ed.2d 155 (1965). . In addition there were four challenged ballots, two of which had been cast by employees discharged by the Company for reasons the Board found to have been in violation of § 8(a) (3). . The following is a facsimile of the card: . As" }, { "docid": "1428548", "title": "", "text": "(3) to elections in effectuating the congressional policy of industrial peace. It infers that, Congress having placed a limit on one means, this court is precluded from imposing a limit on additional, different means. Under section 8(a) (5) an employer may not “refuse to bargain collectively with the representatives of his employees, subject to the provisions of section [9(a)], * * Since section 9 (a) speaks of representatives “designated [presumably by the Board after an election] or selected [presumably through less formal means] for the purposes of collective bargaining,” it is evident, as the majority recognizes, that Congress did not intend elections under section 9(c) to be the only means by which a union could become the bargaining representative within the meaning of section 8(a) (5). UMW v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72, 76 S.Ct. 559, 100 L.Ed. 941 (1956); NLRB v. Larry Faul Oldsmobile Co., 316 F.2d 595, 596-597 (7th Cir. 1963). But it does not follow, as the Board and the majority indicate, that the Company’s refusal to recognize the Union on the basis of authorization cards was an unfair labor practice under section 8(a) (5) where the Union had lost a valid election within the previous year. While section 9(a) is silent as to the appropriateness or relative merits of the various means of choosing a bargaining agent, the Board and the courts have, in certain factual situations, made some distinctions between elections and less formal means of selection for purposes of section 8(a) (5). For example, an employer may be ordered to bargain with a union without an election where he has sought to use the election process to gain time to dissipate the union’s majority status. Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). On the other hand, where an employer is presented with conflicting representation claims of rival unions, none of which are certified, it may not recognize any of them until an NLRB election has been held. Midwest Piping & Supply Co., 63" }, { "docid": "22573009", "title": "", "text": "F.2d 275, 277 (6th Cir. 1964) ; Moss Planing Mill Co., 110 NLRB 933, 935 (1954), enfd. as modified on other grounds, 256 F.2d 653 (4th Cir. 1958) ; Nabors v. N.L.R.B., 323 F.2d 686, 690 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 (1964) ; Wittock Supply Co., 171 NLRB No. 33, slip op. at 7-8, 68 LRRM 1043 (1968), enfd., 136 U.S.App.D.C. 106, 419 F.2d 688 (1969). It was similarly appropriate to include amounts compensating the strikers for money they had to expend on interim insurance coverage due to the Company’s improper recalcitrance in making rein statement offers. See N.L.R.B. v. Rice Lake Creamery Co., 124 U.S.App.D.C. 355, 359-360, 365 F.2d 888, 892-893 (1966) ; Dayton Coal and Iron Corp., 101 NLRB 672, 672-673 (1952), enfd., 208 F.2d 394 (6th Cir. 1953) ; Deena Artware, Inc., 112 NLRB 371, 375 (1955), enfd., 228 F.2d 871 (6th Cir. 1955). See also Mastro Plastics Corp., 136 NLRB 1342, 1360 (1962), enfd., 354 F.2d 170 (2nd Cir. 1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). . For a complete statement of the facts of this case, see Trial Examiner Blackburn’s decision. The Madison Courier, Inc., 180 NLRB 781 ff. . The activities engaged in by the claimants after July 22, 1966, were precisely the same as they had undertaken prior to that time. See 180 NLRB at 782. . No claimant was denied strike benefits due to a failure to satisfy this requirement. The usual stint on the picket line was two hours a day, Monday through Saturday. . The Company contended that August Mead also failed to register with the state employment agency, but the Trial Examiner credited testimony which indicated that Mead had in fact registered, and the Board affirmed this finding. From the record considered as a whole, we are unable to conclude that the Board’s determination in this respect was erroneous. See Joy Silk Mills, Inc. v. N.L.R.B., 87 U.S.App.D.C. 360, 369, 185 F.2d 732, 741 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95" }, { "docid": "22312286", "title": "", "text": "Union before he may permissibly make any unilateral change in the terms and conditions of employment. NLRB v. Cone Mills Corp., 373 F.2d 595, 598-99 (4th Cir. 1967); Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO v. NLRB, 320 F.2d 615, 619-620 (3d Cir. 1963), cert. denied sub nom, Bethlehem Steel Co. v. NLRB, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). See NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Hence, we conclude that the disputed remedy in this case is appropriate, reasonable, and not ultra vires. See NLRB v. Strong, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969); Overnite Transportation Co. v. NLRB, 372 F.2d 765 (4th Cir.), cert. denied, 389 U.S. 838, 88 S.Ct. 59, 19 L.Ed.2d 101 (1967). We have carefully considered 29 U.S.C. § 186, relied upon by petitioner in his assualt on the remedy, and are convinced that it does not apply to this case. Order enforced. . Petitioner asserts that the Union no longer represents the three meat department employees, since they “voluntarily” withdrew on February 8, 1968. But, both the trial examiner and the Board concluded on the basis of what is manifestly substantial evidence that petitioner had induced these withdrawals by promises of economic benefits and other subtle yet coercive practices that amounted to § 8 (a) (1) violations. The law is clear that “[p]etitioner cannot, as justification for its refusal to bargain with the union, set up the defection of union members which it had induced by unfair labor practices, even though the result was that the union no longer had the support of a majority.” Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 687, 64 S.Ct. 830, 835, 88 L. Ed. 1007 (1944) ; Colson Corp. v. NLRB, 347 F.2d 128, 134-135 (8th Cir.), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965). ON PETITION FOR REHEARING In his petition for rehearing, petitioner makes three assertions, all directed toward a challenge of our enforcement of the Board’s remedy requiring petitioner to pay health, welfare," } ]

[ { "docid": "10529365", "title": "", "text": "Fifth Circuit stated “it is not necessary for an inter-venor or claimants to show ownership of seized property.” Id. at 303. Other courts have held that the language of the statute itself makes it clear that an “innocent lien-holder” defense is available. United States v. One Urban Lot, 865 F.2d 427, 430 (1st Cir.1989). In light of this substantial authority we reaffirm Metmor and hold that a lienholder is an “owner” for the purposes of section 881. Because the lienholders are owners, and because the government has conceded their innocence, their interests in the subject property cannot be forfeited. To the extent the district court’s order implied otherwise, it is incorrect. The next issue is the extent of the lienholders’ interests. It is clear from the case law that the lienholders are entitled to the outstanding principal as well as all unpaid pre-seizure interest. In re Metmor Fin., Inc., 819 F.2d at 448; Six Parcels of Real Property, 920 F.2d at 799. Lienhold-ers are also entitled to post-seizure interest. In re Metmor Fin., Inc., 819 F.2d at 451; Six Parcels of Real Property, 920 F.2d at 799. Thus, the district court’s order should reflect that the forfeiture to the government is subject to the lienholders’ claims for principal, and pre- and post-seizure interest. The remaining issue concerns the lienholders’ right to recover their attorney’s fees and costs incurred in obtaining their interests. In Metmor, this Court stated that costs and attorney’s fees would be available to an innocent lienholder if provided for in the mortgage documents, In re Metmor Fin., Inc., 819 F.2d at 448 n. 3, and we so hold today. See Six Parcels of Real Property, 920 F.2d at 799. However, we found that under the terms of the contract in Metmor such fees were not recoverable. It is not clear from the present record whether the lienholders in this case are entitled, under the terms of their contracts, to the recovery of fees and costs. Consequently, we remand this action to the district court so that it may determine in the first instance whether the lienholders are" } ]

[ { "docid": "21883810", "title": "", "text": "the Court pointed out that the power of the State to sell tax-delinquent lands free of the burden of assessments for completed drain projects was essential not only to protect the bondholders themselves but to protect the public interest. Without power in the State to offer an attractive title to prospective purchasers, the Court found, many of such lands would remain tax-delinquent and thereby be rendered valueless for all public revenue purposes, including drain assessments. The Court declined to read into the statute relied upon by appellants any purpose to permit drain districts to surrender the State’s sovereign power to provide for the sale of tax-delinquent property free of encumbrances. It held that under the Michigan law in effect when appellants’ special assessment drain bonds were issued the bondholders’ “maximum security” for payment of assessments against drain district lands was the parcels of land themselves, and that when the bondholders received their fair share of the proceeds derived from the tax sale of any particular parcel they had received everything to which their bond contracts entitled them. Keefe v. Oakland County Drain Comm’r, 306 Mich. 503, 511-512, 11 N. W. 2d 220. Before we can find impairment of a contract we must find an obligation of the contract which has been impaired. Since the contract here relied upon is one between a political subdivision of a state and private individuals, settled principles of construction require that the obligation alleged to have been impaired be clearly and unequivocally expressed. This rule of construction applies with special force in the case at bar, for the interpretation of the bond contract urged by appellants would result in a drastic limitation upon the power of Michigan to enact legislation designed to remedy a situation obviously inimical to the interests of both municipal creditors and the general public. “The continued existence of a government would be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation.” Charles River Bridge v. Warren Bridge, 11 Pet. 420, 548; and see Gilman v. Sheboygan, 2" }, { "docid": "5347048", "title": "", "text": "State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). The Supreme Court has further held that where the state proceedings involve the state’s criminal law, a paramount state interest is implicated. Huffman, supra, 420 U.S. at 603-05, 95 S.Ct. at 1208. See also, O’Neill v. City of Philadelphia, 32 F.3d 785, 791-92 (3rd Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1355, 131 L.Ed.2d 213 (1995). The pending contempt proceeding and criminal charges against Kevorkian implicate these important state interests. The Oakland County injunction prohibits Kevorkian from assisting anyone to commit suicide. People v. Kevorkian, supra, 210 Mich.App. 601, 534 N.W.2d 172. The Michigan Court of Appeals ruling — which the U.S. Supreme Court let stand — was premised on the fact that assisted suicide is illegal and amounts to criminal conduct in Michigan. Id. at 605-608, 534 N.W.2d 172. The Court of Appeals concluded that Kevorkian’s actions “implicate criminal law”. Id. at 608, 534 N.W.2d 172. The third requirement for Younger abstention, i.e., that there be an adequate opportunity in the state proceedings to raise constitutional challenges, is also satisfied in this case. Abstention is appropriate unless state law clearly precludes the interposition of the constitutional claims. Moore, supra, 442 U.S. at 426-28, 99 S.Ct. at 2379. The burden rests on the federal plaintiff to show that state procedure bars the interposition of the constitutional claims. Pennzoil Company, supra, 481 U.S. at 12, 107 S.Ct. at 1527. See also, Fieger v. Thomas, 74 F.3d 740, 745-46 (6th Cir.1996). Kevorkian has not made such a showing here. In fact, the petition for writ of certio-rari filed by Plaintiff Kevorkian in the course of his appeal of the Oakland County Circuit Court’s imposition of the injunction raised several of the very same constitutional issues raised in this action. Kevorkian argued in his cert petition that constitutionally cognizable privacy and liberty interests encompass the right of a mentally competent terminally ill or suffering adult to hasten his/her own death and that it is a denial" }, { "docid": "1853441", "title": "", "text": "Michigan Court of Appeals specifically noted that actions for replevin under Mioh.Comp.Laws § 600.2920 apply only to tangible property and may not be brought for intangibles such as the value of a business or good will of a business. Although Sparling does not directly address the recovery of money as damages, the reasoning of the decision strongly supports defendant’s interpretation of the statute and court rule. In support of their replevin claim, plaintiffs cite Oakland County v. Bice, 386 Mich. 143, 150, 191 N.W.2d 338 (1971). Bice does not directly decide the question before this court. Instead, it discusses the availability of mandamus to recover cash seized by Oakland County pursuant to a grand jury subpoena duces tecum during an investigation of illegal gaming. Although Bice mentions the traditional availability of an action for replevin to recover illegally kept monies, the decision does not discuss the theory of replevin directly. Moreover, even accepting that on the facts of Bice, replevin is available to recover specific funds seized and wrongfully retained, that determination would not apply to the use of replevin to recover monetary damages for breach of an entirely separate statute. Defendant did not wrongfully take finance charges from plaintiffs. Instead, plaintiffs complain that defendant violated various separate statutory provisions involving disclosures, one of which penalizes violations with the forfeiture of finance charges. I conclude that an action for replevin does not lie for recovery of the damages alleged in this action. Accordingly, defendant’s motion for judgment on the pleadings is GRANTED and Count 5 of plaintiffs’ complaint is DISMISSED WITH PREJUDICE. Defendant also contends the plaintiffs’ Count 6, alleging unjust enrichment, should be dismissed for failure to state a claim. Defendant asserts that a claim for unjust enrichment “is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such eircum- stances as to give rise to a legal or equitable obligation to account therefor.” 66 Am.Jr.2d, RestitutioN AND Implied Contracts, § 3, p. 945. Defendant argues that unjust enrichment is a theory based on an" }, { "docid": "9922366", "title": "", "text": "Circuit Court of Oakland County, Michigan, rendered in the proceedings instituted by the petitioner for a construction of the trust instruments. In the Warren case, supra, the grantor created three trusts, one each for the benefit of his wife, daughter, and son. Each trust was declared to be irrevocable and in each the grantor was named as trustee. The powers retained by the settlor-trustee under paragraph 2 of each of the Warren trusts were, in all respects, identical to those retained by the petitioner herein, except that in the Warren trusts, under subpara-graph (h) of paragraph 2, loans to the grantor were required to be made at the market rate of interest. Paragraph 5 of the Warren trusts was identical to paragraph 5 of the trusts herein. The income of all three trusts in the Warren case was to be accumulated or distributed during their existence, in the discretion of the trustee. The trust for the benefit of Warren’s wife terminated and the corpus was distributable to her as her absolute property upon the death of the grantor. As to the trusts for each child, the corpus was distributable to the beneficiary as his or her absolute property when each should attain the age of 85 years, except that if the grantor was still living the trusts were to continue until his death, at which time the beneficiary was to receive the corpus as his or her absolute property. The Board of Tax Appeals held that Warren was taxable, as grantor, upon the income of the trusts. In its opinion the Board said, in part: We do not think that it is material that there is no provision of the trust instruments by which either the income or the corpora of the trusts would ever revest in the petitioner. See Commissioner v. Bucle, supra. The petitioner did have the right to buy and sell to the trusts property at prices to be determined by himself. In David, M. Heyman, 44 B. T. A. 1009, such a right was held to be equal to a power of revocation. In our opinion" }, { "docid": "21742814", "title": "", "text": "exchange for a loan in April of 1990; the Tropfs took out a second mortgage with FNB in exchange for additional funds in June of 1992. According to the U.S. district court, the Tropfs defaulted on the loans, FNB foreclosed on the property, and the property was sold at a sheriffs sale on October 18, 1994. The U.S. district court also found that Lynne Wolenski, a principal of 20th Century Financial Corporation along with Jorg and Frank Bierekoven, subsequently paid FNB approximately $163,000 to redeem the Tropfs’ interest in the property. On March 27, 1995, the Tropfs and Wolenski executed both a warranty deed, in which the Tropfs conveyed the property to Wol-enski, and a land contract, in which the Tropfs repurchased the property from Wolenski for $250,000 to be paid in monthly installments of $2,380.81 with an interest rate of eleven percent. The Tropfs allege that both the warranty deed and the land contract were fraudulent. First Action On September 5, 1995, Wolenski filed a complaint against the Tropfs in the 52-3 District Court in Michigan for land contract forfeiture. A hearing was held on October 17, 1995 before Judge Shipper, at which the Tropfs were represented by counsel. At the hearing, the Tropfs argued that they had been fraudulently induced to sign the warranty deed and the land contract. The judge, however, granted Wolenski a “judgment of possession after land contract forfeiture” and ordered the Tropfs to pay Wolenski approximately $14,000 arrearage due according to the land contract. The Tropfs appealed to the Oakland County Circuit Court and recorded a notice of lis pendens. On January 22, 1996, the state district court issued a writ of restitution of the property to Wol-enski, finding that the Tropfs had failed to pay the arrearage as previously ordered. On February 21, 1996, Judge Breck of the state circuit court affirmed the state district court’s judgment, and on January 3, 1997, the Michigan Court of Appeals denied the Tropfs’ petition for leave to appeal for “lack of merit.” J.A. at 360 (Order of Mich. Ct.App.). On April 30, 1997, Judge Breck discharged" }, { "docid": "21883811", "title": "", "text": "entitled them. Keefe v. Oakland County Drain Comm’r, 306 Mich. 503, 511-512, 11 N. W. 2d 220. Before we can find impairment of a contract we must find an obligation of the contract which has been impaired. Since the contract here relied upon is one between a political subdivision of a state and private individuals, settled principles of construction require that the obligation alleged to have been impaired be clearly and unequivocally expressed. This rule of construction applies with special force in the case at bar, for the interpretation of the bond contract urged by appellants would result in a drastic limitation upon the power of Michigan to enact legislation designed to remedy a situation obviously inimical to the interests of both municipal creditors and the general public. “The continued existence of a government would be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation.” Charles River Bridge v. Warren Bridge, 11 Pet. 420, 548; and see Gilman v. Sheboygan, 2 Black 510, 513; Fisher v. New Orleans, 218 U. S. 438. We do not find in the provision of the drain statute relied upon by appellants a clear and unequivocal purpose of Michigan to permit drain districts to bargain away the State’s power to sell tax-delinquent lands free of encumbrances. Long before the date when appellants’ bonds were issued, the Michigan Supreme Court had held that, “The general rule is that a sale and a conveyance (by the State) in due form for taxes extinguishes all prior liens, whether for taxes or otherwise. This rule is one of necessity, growing out of the imperative nature of the demand of the government for its revenues.” Auditor General v. Clifford, 143 Mich. 626, 630, 107 N. W. 287; and see Municipal Investors Assn. v. Birmingham, 298 Mich. 314, 325-326, 299 N. W. 90, and cases there cited. The provision of the drain statute upon which appellants rest their case does not expressly purport to alter this “rule of necessity.” On its face it deals only with the" }, { "docid": "22825661", "title": "", "text": "the act of March 25, 1854, and was not confirmed by the act of May 15, 1861; that the act of March 21,1868, did not authorize the city of Oakland to convey away the. water front or to settle existing controversies in that way; that such a settlement would be contrary to public policy and contrary to the charter of the city. The defendant contended that it is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters belong to the respective •States within which they are found, with the consequent right tó use or dispose of any portion thereof when that can be done without substantial, impairment of the interests of the public in such waters, and subject to the paramount right of Congress to control their navigation so far as might be necessary for the regulation of commerce ; that the State of California, in and by the act of May 4, 1852, made an irrevocable grant inyprmenti to the town of Oakland of the title and property in all the lands lying within the corporate limits of the town between high tide and ship channel, with the power and right to alien and convey the lands or any part of them for the purposes contemplated by the act; that the act of March 25, 1854, did not, by its own terms or otherwise, operate as a repeal of that grant; that the grant was confirmed and ratified by the legislature of California by the act of May 15, 1861, and by the council of the city of Oakland by and under the authority of the act of March 21, 1868 ; that the grant was made in . pursuance of the settled policy of the State, and created no' interference with or impairment to the bay of San Francisco, nor impaired or interfered with the interests of the public in the waters of that bay or any part thereof, or with the legislative power of the State to ■ regulate or use all the waters in behalf" }, { "docid": "5347047", "title": "", "text": "M.C.L. § 750.505 by assisting in ten suicides from June through September 1996. Both the criminal contempt proceedings and the 20-count criminal complaint are still pending in Oakland County. By virtue of these “ongoing” criminal proceedings in Oakland County, the Court finds the first Younger element satisfied with respect to Dr. Kevorkian. The second factor for applying Younger abstention is whether the pending state proceedings implicate an important state interest. The proper analysis of this issue is not to look merely to the interest in the outcome of the particular case, but to the importance of the generic proceedings to the state. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. at 364-65, 109 S.Ct. at 2516-17. See also, Pennzoil Company v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). Where the requested federal injunction would interfere with the execution of state judgments or contravene a state’s interest in its contempt process, Younger applies. Juidice v. Vail, supra. See also, Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). The Supreme Court has further held that where the state proceedings involve the state’s criminal law, a paramount state interest is implicated. Huffman, supra, 420 U.S. at 603-05, 95 S.Ct. at 1208. See also, O’Neill v. City of Philadelphia, 32 F.3d 785, 791-92 (3rd Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1355, 131 L.Ed.2d 213 (1995). The pending contempt proceeding and criminal charges against Kevorkian implicate these important state interests. The Oakland County injunction prohibits Kevorkian from assisting anyone to commit suicide. People v. Kevorkian, supra, 210 Mich.App. 601, 534 N.W.2d 172. The Michigan Court of Appeals ruling — which the U.S. Supreme Court let stand — was premised on the fact that assisted suicide is illegal and amounts to criminal conduct in Michigan. Id. at 605-608, 534 N.W.2d 172. The Court of Appeals concluded that Kevorkian’s actions “implicate criminal law”. Id. at 608, 534 N.W.2d 172. The" }, { "docid": "22825664", "title": "", "text": "Carpentier. And further, that the confirmation of the ordinances and deed of the town of Oakland by the ordi nances ofthe city pf Oakland under the act of 1868, besides again validating the ordinances and the deed of conveyance of the town, operated as a grant by the. city of Oakland and the State of California of the land in fee simple absolute to the Oakland Water Front Company as grantee or alienee of Carpentier. On behalf of the city of Oakland, which was permitted to be heard at the bar by counsel as amici curice, it was insisted that the original grant of the water front to the town of Oakland had never been revoked; that the city was simply the town’s successor in that regard; and that its rights thereunder, of whatever nature, had in no manner been affected by any exertion of the legislative power of the State. Admitting that a municipal corporation as such has no proprietary interest or riparian rights in tide lands situated within its corporate limits, the city claimed that title had passed to it from the State; that, regarded as holding in trust as a governmental agency, nevertheless it had an interest in the grant of individual advantage, and that, in any view, as an existing corporate entity clothed with powers to be locally exercised, though for the general public good, it could not be divested thereof in the absence of legislation to that end by proceedings in which it was not allow'ed to participate as a litigant. But counsel for the State argued that whatever construction might be put upon the acts of the legislature relating to the city of Oakland, in connection with the water front, the State retained its sovereign power to preserve it for the use of the public free from obstruction, and could alone, by its attorney general, maintain the action; that the city was no more interested in the suit directly or collaterally than any administrative agency would be; that the grant by the act of May 4, 1852, was not in absolute ownership, but in" }, { "docid": "13785438", "title": "", "text": "conforms to the statutory definition of partnership: Sec. 6. (Partnership Defined) (1) A partnership is an association of 2 or more persons, which may consist of husband and wife, to carry on as co-owners a business for profit.... M.C.L.A. § 449.6(1). This Court, therefore, holds that the May 22 agreement between the parties created a partnership. This conclusion is supported by both statutory and case law authority. In a case on point, the Michigan Supreme Court held that an agreement to share in the profits of a business constitutes strong evidence of intent to form a partnership. Corey v. Cadwell, 86 Mich. 570, 49 N.W. 611 (1891). In Corey, the plaintiff originally loaned money to the defendant to enable the defendant to purchase a tract of timber; the loan was to be repaid with interest. When the defendant later wished to obtain further capital from the plaintiff to buy timber, the parties agreed that instead of repayment of these loans with interest that the “net proceeds . .. either from sale of land, lumber, timber, or shingles, after paying [the amount contributed by the plaintiff], and all expenses of manufacturing, transportation, and sale, shall be equally divided between the parties.” Id. at 572, 49 N.W. 611. Thus, as in this case, a transaction originally structured as a loan became a partnership when the lender stopped receiving loan payments and instead agreed to a sharing of the business profits. The rule in Corey has been restated in more modern cases to mean that the sharing of profits, while not conclusive, is prima facie evidence of a partnership under Michigan law. See Lobato v. Paulino, 304 Mich. 668, 8 N.W.2d 873 (1943), Grosberg v. Michigan National Bank Oakland, 113 Mich.App. 610, 318 N.W.2d 490 (1982), Falkner v. Falkner, 24 Mich.App. 633, 180 N.W.2d 491 (1970). This rule has been codified by the Uniform Partnership Act as adopted in Michigan. M.C.L.A. § 449.7 states in pertinent part: (4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the" }, { "docid": "9825011", "title": "", "text": "principal or interest “otherwise” than from its tax moneys in the fund, it is not holden to pay them to the bondholder at all. We see no merit in this contention. It ignores the fact that no contractor would make the same bid for the construction of the public improvement, if all he were to receive is the right to foreclose or have a tax sale of individual pieces of property, securing each of a bundle of bonds paying him small amounts. As was held by the Supreme Court in Weiss v. Stearn, 265 U.S. 242, 254, 44 S.Ct. 490, 492, 68 L.Ed. 1001, 33 A.L.R. 520, “ * * * when applying the provisions of the Sixteenth Amendment and income laws enacted thereunder we must regard matters of substance and not mere form.” The Commissioner thus ignores the fact that the municipality by issuing the bond with its accompanying statutory obligations, , in effect, promises, first, to exercise it governmental power of tax collection for the fund and, second, to pay the bondholder from the fund which makes possible the particular contract for the municipality’s public improvement and that under Irish v. Hahn, supra, and Article XI, section 12 of the constitution of California, no such taxing power exists in the municipality unless for a “public” benefit for the city as a whole as well as a “private” benefit to land holders in the improvement of the city’s streets. / The Commissioner’s briefs do not mention Irish v. Hahn and rely on dicta in earlier California decisions in suits discussing the power to make “holden” the city or the state “otherwise” than on the promise to pay from the bond fund. These are Meyer v. City and County of San Francisco, 150 Cal. 131, 134, 88 P. 722, 10 L.R.A.,N.S., 110; Union Trust Co. v. State of California, 154 Cal. 716, 725, 99 P. 183, 24 L.R.A.,N.S., 1111, and Brookes v. City of Oakland, 160 Cal. 423, 117 P. 433. These cases hold no more than that if the municipality has not collected the tax for the fund the" }, { "docid": "22077825", "title": "", "text": "in bankruptcy unless it is perfected prior to the filing of the petition in bankruptcy. The lien is not perfected if, under state law, a bona fide purchaser would receive title superior to the lienholder upon transfer of the assets subject to the lien. A lien must be perfected by timely filing and adequate notice, and the time of perfection is defined by state statutory and case law. Statutory trusts, however, arise automatically. No notice or filing is required, and perfection is beside the point. Under trust fund theory, a subcontractor’s beneficial interest arises when the owner pays the building contract fund, even though a subcontractor cannot bring suit until the general contractor fails to pay a “matured” debt. B. F. Farnell Co. v. Monahan, 377 Mich. 552, 141 N.W.2d 58 (1966). Although there is authority to the contrary with respect to statutory tax trusts, the few cases on the question characterize other statutory trusts as traditional trusts for purposes of bankruptcy. Commentators have criticized this result, however. They say that statutory trusts should be treated as statutory liens because statutory trusts function as a security device, and “the application of a national bankruptcy statute to legal interests diversely defined” by the states requires classification “on the basis of function rather than nomenclature.” But no cases have adopted this approach, and this criticism overlooks the traditional role of the states in creating and defining the underlying property interests and commercial arrangements to which the Bankruptcy Act applies. Though Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960), is not a bankruptcy case, the Court’s reasoning is on point. Subcontractors under New York’s builders trust fund statute claimed money paid by the owner to a general contractor. The United States also claimed the funds under a perfected federal tax lien. The New York Court of Appeals ruled in favor of the government, apparently on the ground that federal tax liens take “precedence” over statutory trusts as a matter of federal tax law. The Supreme Court reversed and remanded. It held that the question of priority depends" }, { "docid": "4835834", "title": "", "text": "U.S. Tax Cas. (CCH) ¶ 9492 (E.D.Pa.1969); (2) that local law would recognize the existence of a lien, see id.; and (3) that the amount of the lien reflects the extent to which [the attorney’s] efforts “reasonably contributed to the award.” See Oakland Raiders v. Brown, 77-1 U.S. Tax Cas. (CCH) ¶9440 (N.D.Cal.1976). Markham v. Fay, 1993 WL 160604 (D.Mass. May 5, 1993). (1) The Threshold Issue: Was a Fund Created Out of a Judgment? The threshold issue regarding section 6323(b)(8) applicability concerns whether the “attorney’s actions have created a fund of monies via a judgment or settlement of an action.” Warner v. United States, 1995 WL 693188 at *3 (E.D.Ark.1995) (citations omitted). Federal courts have split on this question. The issue concerns whether the attorney created the fund out of which he may be paid, or whether the attorney “merely defended] or protect[ed] his client’s interest in property without obtaining an affirmative recovery.” In re Rosenman & Colin, 850 F.2d 57, 61 (2d Cir.1988). An attorney’s right to collect out of funds or property he obtains for his client is premised on the theory that “it is the attorney who has created the fund out of which he is paid by his efforts.” Geron v. Schulman, (In re Manshul Construction Corp.), 225 B.R. 41, 49 (Bkrtcy.S.D.N.Y.1998) (quoting In re Rosenman & Colin, 850 F.2d at 61). The IRS argues that when this court on remand held that Romano was entitled to the seized funds, Ripa did not create that fund but merely protected his client’s preexisting property. In other words, the government was only holding Romano’s money, and it was always Romano’s money until the government won a judgment of forfeiture: Ripa did not create a fund by accumulating any new money for Romano. In support of its position, the IRS argues by analogy that if a house allegedly used to market illegal drugs was subject to forfeiture, then the attorney’s efforts to defend his client’s right to retain the house would not be considered creation of a fund any more than would defending the house against the judgment" }, { "docid": "22825660", "title": "", "text": "to the town of Oakland, nor to any one, so as to create any titl,e,or interest in the grantee; nor to authorize the town to grant the entire water front to any person to be held and owned as his private property ; that the act of May 4, 1852, did not authorize the town to grant its water front, namely, the lands lying within the limits of that town between high tide and ship channel, to Carpentier, nor to any one to be held as private property; that the ordinance of May 27, 1852, was not designed to confer on Carpentier an interest in the Oakland water front beyond thirty-seven years; that the ordinance was against public policy and void; that the deed of the president of the board of trustees was his individual deed, and, if valid, only conveyed for the life of Carpentier, because it did not run to him and his heirs ; that the alleged grant was not consistent with the policy of the State; that the grant was revoked'by the act of March 25, 1854, and was not confirmed by the act of May 15, 1861; that the act of March 21,1868, did not authorize the city of Oakland to convey away the. water front or to settle existing controversies in that way; that such a settlement would be contrary to public policy and contrary to the charter of the city. The defendant contended that it is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters belong to the respective •States within which they are found, with the consequent right tó use or dispose of any portion thereof when that can be done without substantial, impairment of the interests of the public in such waters, and subject to the paramount right of Congress to control their navigation so far as might be necessary for the regulation of commerce ; that the State of California, in and by the act of May 4, 1852, made an irrevocable grant inyprmenti to the town of Oakland" }, { "docid": "3715839", "title": "", "text": "ORDER REVERSING BANKRUPTCY COURT LYNCH, District Judge. I.. INTRODUCTION Before this Court on appeal come Investors, some of 69 people and entities who claim some property right in a leasehold interest held by Debtor at the time of the Chapter 11 filing. This appeal is opposed by Lessors, two individuals who own the remaining fee simple interest in the leased property and were the lessors to the Debtor of the property in issue. Investors appeal from an Order of the Bankruptcy Court declaring, inter alia, that section 365(d)(4) of the Bankruptcy Code — 11 U.S.C. § 365(d)(4) — has run against them. This Court has jurisdiction to hear this appeal under 28 U.S.C. § 158(a). II. BACKGROUND For the purpose of this appeal, the statement of facts set forth by Investors in their opening brief is largely unopposed. On or about December 8, 1964, Peter and Mary John entered into an agreement (“Ground Lease”) with Oakland Hospital Corporation whereby the Johns agreed to lease the real property commonly known as 2700-2722 East 14th Street, Oakland, California to Oakland Hospital Corporation for a period of 99 years. The Ground Lease provided that the Lessee had the right to remove existing buildings and construct new buildings on the leased premises. Such construction was undertaken by a predecessor in interest to Argonaut (the Debtor) and a medical office building was built on the leased premises. Later, Lessors Sagredos and An-tonis purchased the fee interest in the leased premises and succeeded to the Johns’ interest in the Ground Lease. On or about December 1, 1988, Argonaut’s immediate predecessors in interest, Ray Castor and David and Susan Self, executed a promissory note in favor of Del Mar of Nevada, Inc. (“Del Mar”) in the principal sum of $1,500,000. As security for this note, Castor and the Selfs executed a first deed of trust purportedly encumbering some interest in either the land or the leasehold interest under the Ground Lease. Later, Castor and the Selfs borrowed an additional $200,000 from Del Mar. That Loan was evidenced by a second promissory note and a second deed of" }, { "docid": "1853440", "title": "", "text": "in accordance with certain statutes. As a result, defendant contends that the claim and delivery statute, Mich.Comp. Laws § 600.2920, and court rule, Mich. Court Rule 3.105(A), do not cover this circumstance. Defendant notes that the court rule requires a description of the actual property and further permits the court to order the sheriff to seize the described property. It contends that neither provision is sensible when plaintiffs do not seek to recover specific property, but instead monetary damages. Pursuant to Mich.Comp.Laws § 600.2920(1), A civil action may be brought to recover possession of any goods or chattels which have been unlawfully taken or unlawfully detained and to recover damages sustained by the unlawful taking or unlawful detention.... Id. The statute, by its terms provides a remedy for wrongful takings or possessions of identifiable personal property. It does not provide a general remedy for recovery of damages in compensation or penalty for breach of any statute or common law. In Sparling Plastic Indus., Inc. v. Sparling, 229 Mich.App. 704, 583 N.W.2d 232, 236-37 (1998), the Michigan Court of Appeals specifically noted that actions for replevin under Mioh.Comp.Laws § 600.2920 apply only to tangible property and may not be brought for intangibles such as the value of a business or good will of a business. Although Sparling does not directly address the recovery of money as damages, the reasoning of the decision strongly supports defendant’s interpretation of the statute and court rule. In support of their replevin claim, plaintiffs cite Oakland County v. Bice, 386 Mich. 143, 150, 191 N.W.2d 338 (1971). Bice does not directly decide the question before this court. Instead, it discusses the availability of mandamus to recover cash seized by Oakland County pursuant to a grand jury subpoena duces tecum during an investigation of illegal gaming. Although Bice mentions the traditional availability of an action for replevin to recover illegally kept monies, the decision does not discuss the theory of replevin directly. Moreover, even accepting that on the facts of Bice, replevin is available to recover specific funds seized and wrongfully retained, that determination would not apply" }, { "docid": "20075568", "title": "", "text": "Oakland County that he (Emmons) not only had done nothing contrary to ethics while acting as executor of the estate but that he and his associates could and had given good title to the property so sold. Each complaint further recites that his entire purpose in getting this property in his own name was to salvage something for the estate, that during the intervening years he used his own funds, worked hard, incurred personal liabilities and finally turned over to the trust for a crippled children’s organization some $400,000 after paying all indebtedness of the estate; that on May 8, 1928, when the estate was closed and the trust created he erroneously reported in his final probate .account that he still had one million dollars in assets belonging to said estate which were then to become part of the trust. We direct attention to the words “erroneously reported” in the preceding sentence, since it is Mr. Emmons’ claim that it is chiefly because of this “error” that he has been so unfairly and unjustly accused. But regardless of error or misunderstanding plaintiff’s .position in both cases is that since he had good title to the property, granted by proper orders of the probate court, tested and sustained by decrees of the circuit court of Oakland County, that what he did with those assets from the day he received them was entirely his personal business; that it was in truth a valiant attempt on his part to save for the crippled children’s foundation (recipients and beneficiaries of the trust) as much money as he could; and that he actually made an insolvent estate solvent. Then, he requests that, because of the significance of these “personal acts”, this court prohibit the State Bar from attacking his actions as a “lawyer”, “executor” or “pseudo trustee”, since all such matters and questions were adjudicated by the aforesaid orders of the probate court and decrees of the circuit court. On this he seeks a declaration of his rights under the Michigan declaratory judgment statute, Comp.Laws Mich.1929, § 13903 et seq., denied him by the claimed" }, { "docid": "19078771", "title": "", "text": "not printed in the contracts, both parties understood that Oakland would deliver the cotton to the Julien Warehouse, a warehouse owned by the Julien Warehouse Company, a subsidiary of Julien Co., the buyer, and operated by Federal Compress & Warehouse Company, Inc. (“Federal”). Federal is an independently-licensed warehouseman which manages the Julien Warehouse pursuant to a management agreement with the Julien Warehouse Company. As the parties did not intend the warehouse to store the cotton, however, the contracts did not provide for the use of warehouse receipts. Instead, the parties intended to treat the cotton as “flow-through” cotton, which is cotton that remains in the warehouse only long enough to fill orders and immediately be reshipped. Early in December, 1991, Oakland delivered four separate cotton shipments pursuant to four separate contracts. Several days after each delivery, Oakland forwarded drafts to the Union Planters Bank. The bank, however, dishonored the drafts. Oakland then orally demanded that Federal return the cotton. In response, Federal wrote to Julien Co. that it should claim its interest in the cotton or Federal would be bound to turn over the cotton to Oakland. Rather than turn over the cotton to Oakland, however, Federal filed an interpleader action in an Alabama state court to determine the rightful title to the cotton in question. Soon thereafter, Julien Co. filed its petition in bankruptcy and the court appointed Jack Marlow as trustee. Marlow filed a complaint alleging superior title in the proceeds of the cotton. Pursuant to a consent agreement, the parties removed the interpleader action to bankruptcy court, and proceeded in the present adversary proceeding. The bankruptcy court resolved the case on summary judgment, finding that the trustee had superior title in the cotton as a lien creditor of the estate, Oakland failed to reclaim the cotton, and the United States Warehouse Act did not apply to Oakland’s situation. The district court affirmed. II. In bankruptcy, the district court acts as an appellate tribunal, and this court, in turn, reviews the district court’s decision on appeal. 28 U.S.C. § 158. The bankruptcy court decided this case on summary" }, { "docid": "6761850", "title": "", "text": "Notice to, or an opportunity to be heard by, the MCI Superintendent who issued the Consent to Adoption Decision, and without making the MCI Superintendent a party. 80. M.C.L. 710.45 is vague in that it does not provide for or require substantive or procedural due process for the adoptive parents or the adopted children either directly or by an attorney, guardian, or guardian ad litem. 81. M.C.L. 710.45 and/or Defendant Oakland Court did not define “interested parties” or require notice to interested parties, including, but not limited to, the legal parents of the children, the children, and the GAL. 82. M.C.L. 710.45 permits and/or Defendant Oakland Court permitted a hearing on a Section 45 Motion after the entry of Orders of Adoption in another Court, and without notice to the legal parents of the children or their GAL. 83. M.C.L. 710.45 and/or Defendant Oakland Court did not require notice to other persons, including, but not limited to persons who receive a Consent to Adoption Decision from the MCI Superintendent and who filed an adoption petition even though it has been the practice of other Michigan courts to permit such other persons notice and an opportunity to participate in Section 45 proceedings. 84. M.C.L. 710.45 and/or Defendant Oakland Court did not require a full evidentiary hearing with participation by all interested parties at the hearing on a Section 45 Motion, or require the testimony of the MCI Superintendent who provided the Consent to Adoption Decision. 85. M.C.L. 710.45 and/or Defendant Oakland County Court failed to follow the Michigan Court of Appeals’ holding in In re Cotton, 208 Mich.App. 180, 526 N.W.2d 601 (1994), which requires the court to determine whether there was a complete lack of any reason to withhold adoption consent. 86. M.C.L. 710.45 and/or Defendant Oakland Court authorized the termination of Plaintiffs parental rights contrary to M.C.L. 712A.19(b), which requires by clear and convincing evidence proof of at least one of the listed statutory grounds. 87. M.C.L. 710.45 and/or Defendant Oakland Court failed to require notice to the legal parents of the children and the GAL as interested parties" }, { "docid": "22589333", "title": "", "text": "government’s motion to dismiss for lack of standing. United States v. $191,910 in U.S. Currency, 772 F.Supp. 473, 474-75 (N.D.Cal.1991). The court also denied Morgan’s motion to suppress all evidence resulting from the San Diego airport search as fruits of an over-broad administrative search, id. at 475-76, as well as his motion to suppress on the ground that the questioning outside the Oakland Airport constituted an illegal arrest. Id. at 476-77. The court, however, granted Morgan’s motion to suppress all fruits of the luggage detention, holding that its length was excessive and that the agents failed to act with diligence to obtain a quick dog sniff. Id. at 478-80. Claiming that the government had failed to show probable cause for the institution of forfeiture proceedings, Morgan then moved for summary judgment. On February 7, 1992, the district court granted Morgan’s motion. The government’s timely appeal followed. On appeal, the government argues that the district court erred by (1) denying the government’s motion to dismiss for lack of standing; (2) suppressing the results of the dog sniff test; (3) suppressing evidence of the large amount of money seized; and (4) failing to consider, in determining whether probable cause existed, evidence the government acquired after it instituted this action. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355. We have jurisdiction pursuant to 28 U.S.C. § 1291. II. To have standing to challenge a forfeiture, a claimant must allege that he has an ownership or other interest in the forfeited property. United States v. $122,043.00 in United States Currency, 792 F.2d 1470, 1473 (9th Cir.1986). The government argues that Morgan did not have standing, and that the district court therefore erred in denying its motion to dismiss. We agree with the district court that Morgan claimed a sufficient interest to challenge the forfeiture. In order to contest a forfeiture, a claimant need only have some type of property interest in the forfeited items. This interest need not be an ownership interest; it can be any type of interest, including a possessory interest. See $122,043.00, supra, 792 F.2d at" } ]

[ { "docid": "22212250", "title": "", "text": "29 U.S.C. § 1144(a). Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). The Beck-man plan is an ERISA employee benefit plan. The phrase “relate to” is given broad meaning such that a state law cause of action is preempted if “it has connection with or reference to that plan.” Metropolitan Life Ins. Co. v. Mass., 471 U.S. 724, 730, 732-33, 105 S.Ct. 2380, 2385-86, 85 L.Ed.2d 728 (1985); Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Such claims are preempted if they “relate to” an ERISA plan whether or not they were so designed or intended. Daniel v. Eaton Corp., 839 F.2d 263 (6th Cir.), cert. denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 52 (1988). Nor is it relevant to an analysis of the scope of federal preemption that appellants may be left without remedy. Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The United States Supreme Court has held that Congress’ intent in enacting ERISA was to completely preempt the area of employee benefit plans and to make regulation of benefit plans solely a federal concern. Pilot Life, 481 U.S. at 41, 107 S.Ct. at 1549. See also Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550 (6th Cir.1987). The Court consistently emphasizes the broad scope of preemption under ERISA. See, e.g., Pilot Life, 481 U.S. at 41, 107 S.Ct. at 1549; Metropolitan Life v. Mass., 471 U.S. at 730, 105 S.Ct. at 2384; Shaw, 463 U.S. at 85, 103 S.Ct. at 2890. Thus, only those state laws and state law claims whose effect on employee benefit plans is merely tenuous, remote or peripheral are not preempted. This circuit, too, has repeatedly recognized that virtually all state law claims relating to an employee benefit plan are preempted by ERISA. See, e.g., Ruble v. UNUM Life Ins. Co., 913 F.2d 295 (6th Cir.1990); Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689 (6th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1924, 109 L.Ed.2d 288" } ]

[ { "docid": "9610019", "title": "", "text": "divorced her prior to his death by suicide. The administrator of his estate sought the proceeds of the insurance policy, invoking an Oklahoma statute which provided that the divorce voided the designation of the former wife as beneficiary. The Tenth Circuit ruled in favor of the divorced wife, stating: The basic preemption provision of ERISA is deliberately expansive. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1552-53, 95 L.Ed.2d 39 (1987); Settles v. Golden Rule Ins. Co., 927 F.2d 505, 508 (10th Cir.1991). Unless otherwise encompassed in the saving clause, any state law relating to any ERISA plan is preempted. Pursuant to this section, A law “relates to” an employee benefit plan, in the normal sense of the phrase if it has a connection with or reference to such a plan. Under this “broad common sense meaning,” a state law may “relate to” a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the effect is only indirect. Ingersoll-Rand Co. v. McClendon, [498 U.S. 133, 139], 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990) (citations omitted). Because the designation of beneficiaries to this life insurance policy “relates to” the ERISA plan, the preemption provision applies. See Carland v. Metropolitan Life Ins. Co., 935 F.2d 1114, 1118-19 (10th Cir.1991) (designated beneficiary’s claim for wrongful denial of insurance proceeds is related to the plan); McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir.1990) (“The designation of beneficiaries plainly relates to these ERISA plans, and we see no reason to apply state law on this issue.”). 939 F.2d at 906-07 (emphasis added). The Eleventh Circuit ruled similarly in Brown v. Connecticut General Life Insurance Co., 934 F.2d 1193 (11th Cir.1991), holding that a second wife who was the named beneficiary of a deceased husband’s ERISA life insurance policy was entitled to the proceeds despite a competing claim by the first wife premised upon the divorce decree that dissolved the first marriage. Id. at 1197. In McMillan v. Parrott, 913 F.2d 310 (6th Cir.), remanded on reh’g mem.," }, { "docid": "4111003", "title": "", "text": "41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), the plaintiff incurred a work-related injury in which he was paid benefits under his employer’s ERISA-regulated welfare benefit plan. After a couple of years the payments to plaintiff were discontinued. Plaintiff brought a state common law tort and contract action as serting improper processing of a claim for benefits under an insured employee benefit plan. The Court held that ERISA preempted plaintiff’s state law claims because the common law causes of action “relate[d] to” an employee benefit plan. The Court noted that the phrase “relate to” should be given a broad common-sense meaning and that a state law relates to a benefit plan “if it has a connection with or reference to” such an ERISA plan. Pilot Life, 107 S.Ct. at 1553. To be preempted, a state law does not have to be specifically designed to affect employee benefit plans. Id. Further, on the same day the Supreme Court rendered a decision in Pilot Life, it decided Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) which held that state common law claims preempted by ERISA (as in Pilot Life) are also displaced by ERISA’s civil enforcement provisions. Defendant also relies upon Ingersoll-Rand Co. v. McClendon, — U.S. -, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) in which the Court held that ERISA preempted the plaintiff’s common law claim that he was unlawfully discharged to prevent his attainment of benefits under an ERISA-covered plan. In Ingersoll-Rand, the Court determined that to establish liability under the wrongful discharge claim, the existence of a pension plan was a critical factor. Id. 111 S.Ct. at 483. Furthermore, without the plan, there would have been no cause of action. Id. at 484. The same reasoning applies to both Pilot Life and Metropolitan Life because the existence of a benefit plan was a critical factor in establishing liability. There would have been no cause of action had there been no plan. However, in Eurine, the plaintiff sought damages for personal injuries. The existence of a plan was not a critical" }, { "docid": "17078293", "title": "", "text": "for the purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. Id. § 1144(b)(2)(B). In a series of four opinions, the Supreme Court has expansively interpreted the preemptive scope of ERISA. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990). In Metropolitan Life, a former employee filed suit in a Michigan state court against his former employer and its insurer, claiming breach of contract, retaliatory discharge and wrongful termination of disability benefits. Metropolitan Life, 481 U.S. at 61, 107 S.Ct. at 1545. Defendants removed the action to federal court alleging federal question jurisdiction over the claim for disability benefits and pendent jurisdiction over the’ remaining claims. Id. The Supreme Court held that state common-law contract and tort claims arising from the termination of disability benefits were preempted by ERISA. Id. at 62-63, 107 5. Ct. at 1546. In a companion case of Metropolitan Life, an employee brought common-law contract and tort claims against the insurance company that issued his employer’s group insurance policy, seeking compensatory and punitive damages. Pilot Life, 481 U.S. at 43, 107 S.Ct. at 1551. The plaintiff did not assert any causes of action pursuant to ERISA. Id. at 44, 107 S.Ct. at 1551. Drawing from its holding in Metropolitan Life, the Court in Pilot Life held that ERISA preempted all state common-law claims premised on the alleged improper processing of a claim for benefits. Id. at 481 U.S. at 57, 107 S.Ct. at 1558. In FMC Corp., an employee welfare benefit plan brought suit seeking declaratory judgment that it was entitled to subrogation for sums it had paid for medical expenses of an employee’s daughter. FMC Corp., 498 U.S. at-, 111 S.Ct. at 405-06. The employee refused to reimburse the plan, citing §" }, { "docid": "22321883", "title": "", "text": "that ERISA preempted any effect K.R.S. § 392.-090(2) might have had on the allocation of the proceeds. On appeal, plaintiffs argue that the district court erred in this respect, contending that ERISA does not preempt state laws dealing with domestic issues. We decline to adopt plaintiffs’ position that as a general rule, laws regulating domestic issues are not preempted by ERISA. ERISA does not preempt state laws based upon their general content. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990). Rather, the scope of ERISA’s preemption clause is governed by the relationship the state law has to an employee benefit plan. Specifically, the preemption clause provides that “the provisions of this subchap-ter ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). Thus, whether K.R.S. § 392.090(2) is preempted by ERISA depends not on the nature of the law itself but instead on whether K.R.S. § 392.090(2) “relate[s] to” an employee benefit plan, which in this case is Philip Morris’ deferred profit sharing plan. As consistently noted by the Supreme Court, “the words ‘relate to’ should be construed expansively: ‘[a] law “relates to” an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.’ ” Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 8, 107 S.Ct. 2211, 2215, 96 L.Ed.2d 1 (1987) (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-900, 77 L.Ed.2d 490 (1983)). “Under this ‘broad common-sense meaning,’ a state law may ‘relate to’ a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” Ingersoll-Rand Co., 498 U.S. at 139, 111 S.Ct. at 483 (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1553, 95 L.Ed.2d 39 (1987)). Despite the broad scope of the preemption clause, however, the Court has also cautioned that “[sjome state" }, { "docid": "4397969", "title": "", "text": "(1988); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). “The pre-emption clause is conspicuous for its breadth.... [A] law relates to an employee welfare plan if it has ‘a connection with or reference to such a plan.’ ” FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407,112 L.Ed.2d 356 (1990) (quoting Shaw v. Delta Air Lines, 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)). Congress used the words “relate to” in their broad sense. Shaw, 463 U.S. at 98, 103 S.Ct. at 2900. Moreover, “State law” was defined using equally broad language, to include “all laws, decisions, rules, regulations, or other State action having the effect of law.” 29 U.S.C. § 1144(c)(1) (1988). Thus, “[u]nder this ‘broad common-sense meaning,’ a state law may ‘relate to’ a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” IngersolIr-Rand v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990) (quoting Pilot Life, 481 U.S. at 47, 107 S.Ct. at 1552-53). Count I of Zuniga’s complaint alleges that Blue Cross breached the settlement agreement by “resurrecting the previously refuted allegation” of overutilization “as a reason for denial of his application to be an authorized provider for the [ERISA plan].” Clearly this claim “relates to” an employee welfare plan as it explicitly “refer[s] to such a plan.” FMC Corp., 498 U.S. at. 58, 111 S.Ct. at 407. Zuniga argues that ERISA does not preempt claims for which it does not provide a remedy. Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 162 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990). We have said that although “ERISA will not preempt state law claims based on wrongs for which ERISA provides no remedies[,] ... where rights are guaranteed by ERISA, the remedy for such rights under ERISA is exclusive. Moreover, Congress constructed ERISA so that the statute will preempt most state law claims.” International Resources v. New" }, { "docid": "6910001", "title": "", "text": "for the improper processing of a claim for benefits by an ERISA-covered plan. The Court in Pilot Life found that common-law causes of action based on the improper handling of a claim by an ERISA plan “relate to” an employee benefit plan, and therefore fall under ERISA’s preemptive scope. See id. at 47-48, 107 S.Ct. at 1552-53. Similarly, in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), the Supreme Court held that ERISA preempts a common-law claim seeking “lost future wages, mental anguish and punitive damages as a result of [an employer’s alleged] wrongful discharge” of an employee from his employment to prevent the employee from exercising his rights under ERISA. Ingersoll-Rand, 498 U.S. at 136, 111 S.Ct. at 481 (quotations omitted). The Court in Ingersoll-Rand reasoned that ERISA preempted the cause of action because the claim was premised on the existence of an ERISAcovered pension plan. See id. at 140, 111 S.Ct. at 483. Similarly, Ludwig’s cause of action for breach of contract seeks to rescind an agreement between the parties concerning plaintiff’s coverage under NYNEX’s employee benefit plans. As was the case in Ingersoll-Rand, “there simply is no cause of action if there is no plan.” Id. at 140, 111 S.Ct. at 484 (emphasis in original). Therefore, Ludwig’s common-law cause of action is preempted by ERISA in accordance with Pilot Life and Ingersoll-Rand. See Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 591 (2d Cir.1993) (citing Pilot Life for proposition that ERISA preempts state-law contract claims pertaining to the denial of benefits under employee benefit plans); Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 288 (2d Cir.1992) (holding that ERISA preempts common-law actions — in this ease fraud — which merely amount to alternative theories of recovery for conduct that is already actionable under ERISA, noting that the exclusive remedy for improper conduct in such cases is under ERISA § 502(a)); Smith v. Dunham-Bush, Inc., 959 F.2d 6, 8 (2d Gir.1992) (common-law contract and tort claims preempted by ERISA); Sandler v. Marconi Circuit Technology Corp., 814 F.Supp." }, { "docid": "23437613", "title": "", "text": "a benefits plan out of ERISA”). Under the Donovan and Brundage analyses, International Resources has established an ERISA plan. Several of International Resources’ actions are persuasive: 1) the company contracted with Group Marketing Services for the purpose of providing insurance to its employees; 2) the company obtained the coverage for its employees; 3) the coverage was automatic and applied to all employees; and, 4) the company paid the insurance premiums. International Resources did not merely advertise alternate plans and then refrain from making any contributions on behalf of its employees. Compare with Taggart, 617 F.2d at 1211. Instead, International Resources chose the plan, paid the premiums, and gave this coverage to all its employees as an employee benefit. Even though Larry Smith is presently International Resources’ only full-time employee, the mere fact the company no longer has several employees does not transform what was already an ERISA plan into a non-ERISA plan. This is particularly true where there is no indication that the plan would not have been offered to another full-time employee if such were hired in the future. The combination of all these facts demonstrate that International Resources established an employee benefit plan under 29 U.S.C. § 1002(1) (1991). B. Preemption Of State Law Claims Because we have found an ERISA plan exists, we must now determine whether the plaintiffs’ state law claims are preempted by the Act. ERISA will not preempt state law claims based on wrongs for which ERISA provides no remedy. Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 162 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990). However, where rights are guaranteed by ERISA, the remedy for such rights under ERISA is exclusive. Ingersoll-Rand, 111 S.Ct. at 485-86; see also Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 41, 107 S.Ct. 1549, 1549-50, 95 L.Ed.2d 39 (1987); Varhola v. Doe, 820 F.2d 809, 817 (6th Cir.1987). Moreover, Congress constructed ERISA so that the statute will preempt most state law claims. Ingersoll Rand, 111 S.Ct. at 483; FMC, 111 S.Ct. at 407-408. The Supreme Court in FMC discusses" }, { "docid": "2439401", "title": "", "text": "set forth in 29 U.S.C. § 1144(a), Congress preempted “all State laws insofar as they may now or here after relate to any employee benefit plan.” Statutory mandates, court decisions, and state law from all other sources are included within the preemption clause. 29 U.S.C. 1144(c)(1). The Prudential Health Care Plan of the Mid Atlantic is indisputably an employee benefit plan governed by ERISA. The question then becomes whether Plaintiffs’ state law claims based on state common law theories of liability are preempted by ERISA Section 514(a). Determining whether a particular state law is preempted by ERISA presents, fundamentally, a question of determining legislative intent. Ingersoll-Rand, 498 U.S. at 137-38, 111 S.Ct. at 482. The Supreme Court repeatedly has concluded that Congress intended the preemption clause to be construed extremely broadly. See, e.g., FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). The critical determination governing preemption is whether the state law asserted “relates to” an ERISA plan. 29 U.S.C. § 1144(a). A law “[clearly] ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw, 463 U.S. at 96-97, 103 S.Ct. at 2900. The law need not expressly address a benefit plan to be preempted, however. Under the “broad common-sense meaning” given to the preemption clause by the Supreme Court, a state law may “relate to” a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the effect is only indirect. Ingersoll-Rand, 498 U.S. at 139, 111 S.Ct. at 483; Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1552-53, 95 L.Ed.2d 39 (1987). In other words, state law claims which relate to the administration of an ERISA-governed plan, but which arise under general state laws which themselves have no impact on employee benefit plans, fall within the scope of ERISA preemption. Powell v. Chesapeake" }, { "docid": "23437614", "title": "", "text": "were hired in the future. The combination of all these facts demonstrate that International Resources established an employee benefit plan under 29 U.S.C. § 1002(1) (1991). B. Preemption Of State Law Claims Because we have found an ERISA plan exists, we must now determine whether the plaintiffs’ state law claims are preempted by the Act. ERISA will not preempt state law claims based on wrongs for which ERISA provides no remedy. Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 162 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990). However, where rights are guaranteed by ERISA, the remedy for such rights under ERISA is exclusive. Ingersoll-Rand, 111 S.Ct. at 485-86; see also Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 41, 107 S.Ct. 1549, 1549-50, 95 L.Ed.2d 39 (1987); Varhola v. Doe, 820 F.2d 809, 817 (6th Cir.1987). Moreover, Congress constructed ERISA so that the statute will preempt most state law claims. Ingersoll Rand, 111 S.Ct. at 483; FMC, 111 S.Ct. at 407-408. The Supreme Court in FMC discusses in detail 29 U.S.C. § 1144(a) (1991), ERISA’s “pre-emption clause.” This clause provides that all state law claims which “relate to” employee benefit plans are preempted. The FMC Court reaffirmed that this clause “is conspicuous in its breadth.” Ill S.Ct. at 407. The Court also reiterated its finding in Shaw v. Delta Airlines, 463 U.S. 85, 98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983), that Congress used the words “relate to” in this provision “in their broad sense.” Id. at 408. Ingersoll-Rand, 111 S.Ct. at 478, demonstrates a similarly expansive reading of ERISA and the Court’s holding that the plaintiffs’ state law claim was preempted by ERISA rests on analysis of the preemption clause. The Supreme Court in Ingersoll-Rand found that a claim for wrongful termination was preempted by ERISA because the inquiry for this cause of action would be dependent upon—“relate to”—the existence of an ERISA plan. Id. at 483. The claim was based on an allegation that the employer fired the plaintiff as a way to avoid contributing to the plaintiffs pension" }, { "docid": "23437615", "title": "", "text": "in detail 29 U.S.C. § 1144(a) (1991), ERISA’s “pre-emption clause.” This clause provides that all state law claims which “relate to” employee benefit plans are preempted. The FMC Court reaffirmed that this clause “is conspicuous in its breadth.” Ill S.Ct. at 407. The Court also reiterated its finding in Shaw v. Delta Airlines, 463 U.S. 85, 98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983), that Congress used the words “relate to” in this provision “in their broad sense.” Id. at 408. Ingersoll-Rand, 111 S.Ct. at 478, demonstrates a similarly expansive reading of ERISA and the Court’s holding that the plaintiffs’ state law claim was preempted by ERISA rests on analysis of the preemption clause. The Supreme Court in Ingersoll-Rand found that a claim for wrongful termination was preempted by ERISA because the inquiry for this cause of action would be dependent upon—“relate to”—the existence of an ERISA plan. Id. at 483. The claim was based on an allegation that the employer fired the plaintiff as a way to avoid contributing to the plaintiffs pension fund. Ingersoll-Rand and FMC both emphasize, as well, the larger policy rationales for a broad interpretation of ERISA’s preemptive powers and the importance of avoiding conflicting state rules on ERISA-related matters. Ingersoll Rand, 111 S.Ct. at 483; FMC, 111 S.Ct. at 408. The saving clause, 29 U.S.C. § 1144(b)(2)(A) (1991), qualifies the preemptive force of 29 U.S.C. § 1144(a). Under the saving clause, state laws regulating insurance are not preempted by ERISA when they are “saved” by the express terms of this provision. FMC, 111 S.Ct. at 407. The saving clause “returns to the States the power to enforce those state laws that ‘regulate insurance’ except as provided in the deemer clause.” Id. at 408. The deemer clause, § 1144(b)(2)(B) thus qualifies the qualification made in the saving clause by requiring that “an employee benefit plan governed by ERISA shall not be ‘deemed’ an insurance company, an insurer, or engaged in business of insurance for the purposes of state laws purporting to regulate insurance companies or insurance contracts.” Id. at 407. Analysis of the “deemer" }, { "docid": "4397970", "title": "", "text": "483, 112 L.Ed.2d 474 (1990) (quoting Pilot Life, 481 U.S. at 47, 107 S.Ct. at 1552-53). Count I of Zuniga’s complaint alleges that Blue Cross breached the settlement agreement by “resurrecting the previously refuted allegation” of overutilization “as a reason for denial of his application to be an authorized provider for the [ERISA plan].” Clearly this claim “relates to” an employee welfare plan as it explicitly “refer[s] to such a plan.” FMC Corp., 498 U.S. at. 58, 111 S.Ct. at 407. Zuniga argues that ERISA does not preempt claims for which it does not provide a remedy. Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 162 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990). We have said that although “ERISA will not preempt state law claims based on wrongs for which ERISA provides no remedies[,] ... where rights are guaranteed by ERISA, the remedy for such rights under ERISA is exclusive. Moreover, Congress constructed ERISA so that the statute will preempt most state law claims.” International Resources v. New York Life Ins., 950 F.2d 294, 298 (6th Cir.1991) (citations omitted), cert. denied, — U.S. -, 112 S.Ct. 2941, 119 L.Ed.2d 565 (1992). “[T]he question whether a certain state action is pre-empted by federal law is one of congressional intent.” ... Where, as here, Congress has expressly included a broadly worded pre-emption provision in a comprehensive statute such as ERISA, our task of discerning congressional intent is considerably simplified. Ingersoll-Rand, 498 U.S. at 137-38, 111 S.Ct. at 482 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985)). “It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991), cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). That is exactly what Zuniga seeks here, the payment of benefits under the plan for his treatment of covered patients. Further, ERISA’s civil enforcement" }, { "docid": "16763082", "title": "", "text": "to prevent her from acquiring a vested interest in a retirement plan was preempted by ERISA) and Sorosky v. Burroughs Corp., 826 F.2d 794 (9th Cir.1987) (wrongful termination claim based on theory that employer wanted to avoid paying retirement benefits was preempted by ERISA). Any remaining doubts regarding ERISA preemption of wrongful termination claims were resolved recently by the Supreme Court. In Ingersoll-Rand Co. v. McClendon, — U.S. -, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), the plaintiff McClendon brought suit against his former employer Ingersoll-Rand in state court alleging wrongful termination based on the employer’s desire to avoid making contributions to his pension fund. Id. 111 S.Ct. at 481. The company had asserted that McClen-don’s termination was simply part of a workforce reduction. Id. The case was not removed to federal court. On appeal, the Texas Supreme Court held that when a plaintiff demonstrates that the motivation for her termination was her employer’s attempt to avoid pension plan contributions, she states a common law wrongful termination claim and ERISA does not apply. Id. The United States Supreme Court reversed, concluding that McClendon’s common-law wrongful termination action was clearly preempted by ERISA, both explicitly and implicitly. Id. at 482. First, the Court found that the wrongful termination action was expressly preempted by ERISA’s preemption section, § 514(a), 29 U.S.C. § 1144(a). It noted that under the broad language of § 514(a), “a state law may ‘relate to’ a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” Id. at 483 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987) and Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 525, 101 S.Ct. 1895, 1907, 68 L.Ed.2d 402 (1981)). The Court did note that it had recognized exceptions to ERISA’s broad preemption in the past, citing its decision in Fort Halifax. Id. However, it found that the distinction it made in Fort Halifax between benefit plans and state-mandated benefits was not applicable to a wrongful termination claim. Id." }, { "docid": "6696767", "title": "", "text": "and their beneficiaries by supplanting piecemeal state regulation of employee benefit plans with comprehensive, uniform federal regulation of such plans. See 29 U.S.C. § 1001(b); FMC Corp. v. Holliday, 498 U.S. 52, 56-60, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990). In an attempt to achieve this goal, among others, ERISA “supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan[ ] not exempt under section 1003(b) of this title.” 29 U.S.C. § 1144(a). The preemption analysis is guided by congressional intent, see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), and ERISA’s preemption clause was “deliberately expansive ... to establish pension plan regulation as exclusively a federal concern.” See id. at 46, 107 S.Ct. 1549 (internal quotation omitted). Plaintiff concedes that whether ERISA preempts such state claims depends on whether the claims “relate to” an ERISA plan. 29 U.S.C. § 1144(a). A state law “relates to” an employee benefit plan if it has “a connection with or reference to such a plan.” Shaw v. Delta Air Lines, 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Therefore, although preemption is not limitless, a state law may “relate to” an employee benefit plan even if the law was not created to affect the plan, see id. at 47-48, 107 S.Ct. 1549, or the effect is only indirect. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138-139, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990). The Supreme Court has taught Congress clearly intended that “all suits brought by beneficiaries or participants asserting improper processing of claims under ERISA-regulated plans be treated as federal questions governed by § 502(a).” Pilot Life, 481 U.S. at 56, 107 S.Ct. 1549. As a result, the Supreme Court has held that ERISA’s preemption clause applied to a plaintiffs claims of tortious breach of contract, breach of fiduciary duties and fraud in the inducement arising out of an insurance company’s failure to pay benefits owed. See id. at 48, 57, 107 S.Ct. 1549. Cf. Ingersoll-Rand, 498 U.S. at 140," }, { "docid": "6910000", "title": "", "text": "refusal to allow Ludwig to rollover his AT & T Savings Plan proceeds into the NYNEX Savings Plan. Plaintiff presumably argues that the defendants’ violation of the clear terms of this agreement constituted a material breach of such agreement, thereby allowing him to rescind the release, or alternatively, constituted a non-material breach for which damages would be available. If the release were rescinded, plaintiff would presumably argue that his assent to be governed by the Mandatory Portability Agreement was similarly negated, and that therefore (i) his allocated pension assets should be returned to AT & T, (ii) his AT & T pension should be reinstated, and (iii) the defendants should compensate him for any incidental and consequential injuries that plaintiff incurred. Plaintiff’s consequential injuries would presumably include the interest cost attributable to the time value of money associated with receiving his monthly pension at a later date. In Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), the Supreme Court expressly held that ERISA preempts state common-law suits for the improper processing of a claim for benefits by an ERISA-covered plan. The Court in Pilot Life found that common-law causes of action based on the improper handling of a claim by an ERISA plan “relate to” an employee benefit plan, and therefore fall under ERISA’s preemptive scope. See id. at 47-48, 107 S.Ct. at 1552-53. Similarly, in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), the Supreme Court held that ERISA preempts a common-law claim seeking “lost future wages, mental anguish and punitive damages as a result of [an employer’s alleged] wrongful discharge” of an employee from his employment to prevent the employee from exercising his rights under ERISA. Ingersoll-Rand, 498 U.S. at 136, 111 S.Ct. at 481 (quotations omitted). The Court in Ingersoll-Rand reasoned that ERISA preempted the cause of action because the claim was premised on the existence of an ERISAcovered pension plan. See id. at 140, 111 S.Ct. at 483. Similarly, Ludwig’s cause of action for breach of contract seeks to rescind an agreement" }, { "docid": "19695252", "title": "", "text": "any employee benefit plan.” The parties do not dispute that the plan offered to Jackson and his colleagues is an employee benefit plan governed by ERISA. The relevant question, then, is whether Jackson’s state-law claim of vicarious liability sufficiently “relates to” his employment benefit plan in a way that requires preemption. Whether or not ERISA preempts Jackson’s state claim against MD-IPA is a question whose answer depends, ultimately, on legislative intent. Ingersoll-Rand, 498 U.S. at 137-38, 111 S.Ct. at 482; Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747, 105 S.Ct. 2380, 2393, 85 L.Ed.2d 728 (1985). To give proper effect to congressional intent, this Court must, in its consideration of whether a law “relates to” an employee benefit plan within the meaning of § 514(a) of ERISA, apply a broad common-sense meaning to the term. Id. at 747, 105 S.Ct. at 2393. See also FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407-08, 112 L.Ed.2d 356 (1990); Shaw, 463 U.S. at 97, 103 S.Ct. at 2900. • Where a state law “has a connection with or reference to” an employee benefit plan and relates to it in the “normal sense of the phrase,” it will be considered preempted. Id. at 97, 103 S.Ct. at 2900; Ingersoll-Rand, 498 U.S. at 133, 111 S.Ct. at 478. Indeed, even a state law which is not specifically designed to affect a benefit plan or whose effect on it is only indirect may be found to relate to it for preemption purposes. Id. at 139, 111 S.Ct. at 483; Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1552-53, 95 L.Ed.2d 39 (1987). In short, a state-law claim whose governing law has no impact on an employee benefit plan but which is invoked by a beneficiary claiming relief for injuries arising out of the administration of the plan, such as the mishandling of benefit claims or other maladministrations of a plan, “relates to” such a plan. Powell v. Chesapeake & Potomac Telephone Co. of Va., 780 F.2d 419, 421-22 (4th Cir. 1985), cert. denied, 476 U.S." }, { "docid": "20358249", "title": "", "text": "Ingersoll-Rand, 498 U.S. at -, 111 S.Ct. at 482; Shaw, 463 U.S. at 90, 103 S.Ct. at 2896; Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 361-62, 100 S.Ct. 1723, 1726-27, 64 L.Ed.2d 354 (1980). ERISA imposes participation, funding, and vesting requirements on pension plans and establishes standards for reporting, disclosure, and plan fiduciary responsibility. See 29 U.S.C. § 1001 et seq.; Shaw, 463 U.S. at 90-91, 103 S.Ct. at 2896. To secure federal control over ERISA plans, Congress provided for federal preemption of “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). See also Ol son v. General Dynamics Corp., 951 F.2d 1123, 1125 (9th Cir.1991) (“[T]his pre-emption clause is ‘deliberately expansive, and designed to establish pension plan regulation as exclusively a federal concern.’ ”) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39). In the context of § 1144(a), “[a] law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw, 463 U.S. at 96-97, 103 S.Ct. at 2900. In Shaw and elsewhere, the Supreme Court has consistently acknowledged the broad scope of ERISA preemption. See, e.g., Ingersoll-Rand, 498 U.S. at -, 111 S.Ct. at 482; FMC Corp. v. Holliday, 498 U.S. 52, -, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990); Pilot Life Ins. Co., 481 U.S. at 46, 107 S.Ct. at 1552. See also Olson, 951 F.2d at 1125; Pizlo v. Bethlehem Steel Corporation, 884 F.2d 116, 120 (4th Cir.1989). Accordingly, ERISA preemption has not been limited to state laws specifically designed to affect employee benefit plans. See Shaw, 463 U.S. at 98-99, 103 S.Ct. at 2900-01 (ERISA preempted New York’s Human Rights Law and Disability Benefits Law because it “related to” an employee benefit plan within the meaning of § 1144(a)). The expansiveness of § 1144(a) notwithstanding, ERISA preemption plainly has limits. As the Supreme Court has clearly stated, “[s]ome state actions may affect employee" }, { "docid": "5299422", "title": "", "text": "the additional pension benefits that apparently would have been available to her had she retired at age fifty-five rather than at age fifty-one. The Motion to Dismiss is denied as to Count III. II. Counts IV and V — Estoppel and Fraud in the Inducement Counts IV and V do not fare as well. Illinois Bell argues that both claims are preempted under ERISA as a matter of law. We agree, notwithstanding Weatherly’s argument that judgment in her favor will not impact the Plan itself. ERISA “supersede^ any and all State laws insofar as they may ... be related to any employee benefit plan.” 29 U.S.C. § 1144(a). State laws that regulate insurance are exempted from preemption. 29 U.S.C. § 1144(b). This “deliberately expansive” preemption clause, District of Columbia v. Greater Washington Bd. of Trade, — U.S. -,-, 113 S.Ct. 580, 583, 121 L.Ed.2d 513, 520 (1992), “establishes as an area of exclusive federal concern the subject of every state law that ‘relates to’ an employee benefit plan that is governed by ERISA.” FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990). A state law “relates to” an employee benefit plan if it “has a connection with or a reference to such a plan,” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985); “ ‘even if the law is not specifically designed to affect such plans, or the effect is only indirect.’ ” Greater Washington Bd. of Trade — U.S. at -, 113 S.Ct. at 583 (quoting Ingersoll-Rand Co. v. McLendon, 498 U.S. 133, 139, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990)). A law is “connected to” an employee benefit plan if the existence of a plan is “a critical factor in establishing liability.” Ingersoll-Rand, 498 U.S. at 139, 111 S.Ct. at 483. We conclude" }, { "docid": "11213808", "title": "", "text": "Journal D.A.R. 7481, 7482 (June 20, 1991), the United States Supreme Court has emphasized the unusual breadth of ERISA’s express preemption provision in a series of opinions. The Court has described section 514(a) of ERISA as a “virtually unique preemption provision” (see Franchise Tax Board v. Laborers Vacation Trust, 463 U.S. 1, 24, fn. 26, 103 S.Ct. 2841, 2854, fn. 26, 77 L.Ed.2d 420 (1988)), and as a clause “conspicuous for its breadth.” See FMC Corp. v. Holliday, 498 U.S. -, -, 111 S.Ct. 403, 407, 112 L.Ed.2d 356, 364 (1990). The Court has also characterized the provision as “deliberately expansive” {see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987), citing Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981)), and as “establish[ing] as an area of exclusive federal concern the subject of every state law that ‘relate[s] to’ an employee benefit plan governed by ERISA.” See FMC Corp., 498 U.S. at -, 111 S.Ct. at 407, 112 L.Ed.2d at 364. Consistent with the foregoing, the high court has also interpreted broadly the statutory term “relate to”. See 29 U.S.C. § 1144(a). Most recently, in Ingersoll-Rand Co. v. McClendon, 498 U.S. -, -, 111 S.Ct. 478, 482, 112 L.Ed.2d 474, 483 (1990), the Court explained that “[t]he key to § 514(a) is found in the words ‘relate to.’ Congress used those words in their broad sense, rejecting more limited preemption language that would have made the clause ‘applicable only to state laws relating to the specific subjects covered by ERISA.’ ” This is consistent with the Court’s previous instruction in Pilot Life that “a state law, ‘relate[s] to’ a benefit plan, ‘in the normal sense of the phrase, if it has a connection with or reference to such a plan’ ”. See Pilot Life, 481 U.S. at 47, 107 S.Ct. at 1553. “Because of the breadth of the preemption clause and the broad remedial purpose of ERISA, ‘state laws found to be beyond the scope of [§ 514(a) of ERISA] are few.’ ”" }, { "docid": "5395078", "title": "", "text": "of Mr. McDonald’s claim for wages due and owing, the Court agrees with Defendants for the reasons set forth below. The preemption clause of ERISA provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). The Supreme Court has repeatedly ruled that Congress intended for this clause to be read expansively. “The breadth of [ERISAj’s pre-emptive reach is apparent from that section’s language. A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.... Congress used the words ‘relates to’... in their broad sense.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-900, 77 L.Ed.2d 490 (1983) (footnotes omitted). “The pre-emption clause is conspicuous for its breadth.” FMC Corp. v. Holliday, 498 U.S. [-,-1 111 S.Ct. 403, 407 [112 L.Ed.2d 356] (1990). Its “deliberately expansive” language was designed to “establish pension plan regulation as an exclusively federal concern.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 [107 S.Ct. 1549, 1552, 95 L.Ed.2d 39] (1987) (quoting Alessi v. RaybestosManhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981)). Ingersoll-Rand Co. v. McClendon, — U.S. -, -, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990). Not only has “relates to” been read broadly, but “State law” has a comprehensive statutory definition. “[T]o underscore its intent that [ERISA’s preemption clause] be expansively applied, Congress used equally broad language in defining the ‘State law’ that would be pre-empted. Such laws include ‘all laws, decisions, rules, regulations, or other State action having the effect of law.’ 29 U.S.C. § 1144(c)(1).” Id., 111 S.Ct at 483. The facts in Ingersoll-Rand are similar to those in this case. Ingersoll-Rand fired Perry McClendon who had worked as a salesperson for the company for over nine years. McClendon brought a state law wrongful discharge claim based in contract and tort law, claiming that the reason for his termination was the company’s desire" }, { "docid": "13428968", "title": "", "text": "ERISA preempts the Carlos’ state law claims for negligent misrepresentation. IY. PREEMPTION Section 514 of ERISA supersedes “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan_” 29 U.S.C. § 1144(a) (emphasis added). “The term ‘State Law includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1). The Supreme Court has established that “a law ‘relates to’ an employee benefit plan ... if it has a connection with or reference to such a plan.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)). “Under this ‘broad common-sense meaning,’ a state law may ‘relate to’ a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” Id. (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1553, 95 L.Ed.2d 39 (1987)). In Ingersoll-Rand, the Supreme Court identified two tests for determining whether a state cause of action is preempted because it “relates to” an ERISA plan. First, a law is expressly preempted by ERISA where “the court’s inquiry must be directed- to the plan.” Ingersoll-Rand, 498 U.S. at 140, 111 S.Ct. at 483. Second, even where there is no express preemption, a cause of action is preempted if it conflicts directly with ERISA. Id. at 142, 111 S.Ct. at 484. Given these preemption principles, we must decide whether the Carlos’ claims relate to the ERP and are therefore preempted. The Carlos’ suit seeks damages for what can best be described as negligent misrepresentation. They argue that their claims for misrepresentation are so remotely related to the ERP that, for the purposes of ERISA preemption, they do not relate to it. They allege that they are not seeking coverage under the ERP, but rather damages sustained as a result of Reed’s alleged misrepresentation concerning the extent of" } ]

[ { "docid": "18789761", "title": "", "text": "law enforcement purposes. Section 374(a)(1), which refers specifically to the drug laws that Roberts and Hawk have been convicted of violating, authorizes the Secretary of Defense to assign Navy personnel to operate this equipment. Section 374(b), however, generally requires that this equipment be used only “for monitoring and communicating the movement of air and sea traffic.” Section 374(c)(1) authorizes a narrow exception to this rule: In an emergency circumstance, [this] equipment ... may be used outside the land area of the United States ... as a base of operations by Federal law enforcement officials to facilitate the enforcement of a law listed in subsection (a) and to transport such law enforcement officials in connection with such operations, if— (A) equipment operated by or with the assistance of personnel assigned under subsection (a) is not used to interdict or to interrupt the passage of vessels or aircraft.... 10 U.S.C. § 374(c)(1). Here, the equipment operated by the Navy personnel — the Reid and the boarding boat — was used to interdict or interrupt the passage of the Sea Waltz. Therefore, the Navy activity does not fall within the narrow exception in section 374(c) and instead would appear to violate the terms of section 374(b). Section 374, however, cannot be read in isolation. It must be considered in the context of the entire chapter, particularly section 378, which is entitled “Nonpreemption of other law,” and states: “Nothing in this chapter shall be construed to limit the authority of the executive branch in the use of military personnel or equipment for civilian law enforcement purposes beyond that provided by law before December 1, 1981.” Section 378 requires that we determine the legal authority of the executive branch to use the Navy for civilian law enforcement purposes before December 1, 1981. If the exercise of authority here would have been within the legal authority of the executive branch if it had occurred prior to December 1, 1981, section 378 immunizes what would otherwise be a violation of section 374. The government concedes that prior to December 1, 1981, Naval Instruction 5820.7 (issued May 15," } ]

[ { "docid": "18789764", "title": "", "text": "is not in the record. His reference to the enclosure suggests that its authorization may have been confined to the Atlantic fleet. Moreover, the government represented to the district judge that “it would appear that the approval ... went to a limited area; that is, to the Atlantic fleet.” While the government now acknowledges only that “a close reading of these documents reflects confusion as to whether the authorization ... extended to the Pacific Ocean,” we assume, arguendo, that the government is bound to its original concession. It follows that the Navy activity here was not authorized by the Secretary of the Navy. Consequently, the nonpreemption provision of section 378 does not apply, and the Navy activity violated section 374. B. We now consider whether this violation of 10 U.S.C. § 374 required the district court either to dismiss indictments of Roberts and Hawk or to suppress the evidence obtained via the violations. We review the district court’s refusal to impose sanctions under an “abuse of discretion” standard. See United States v. Sterling, 742 F.2d 521, 524 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985). Because the Posse Comitatus Act and sections 371-378 of Title 10 embody similar proscriptions against military involvement in civilian law enforcement, we consider it significant that courts have uniformly refused to apply the exclusionary rule to evidence seized in violation of the Posse Comitatus Act. See, e.g., United States v. Wolffs, 594 F.2d 77, 85 (5th Cir.1979) (Wolffs)-, United States v. Walden, 490 F.2d 372, 376-77 (4th Cir.), cert. denied, 416 U.S. 983, 94 S.Ct. 2385, 40 L.Ed.2d 760 (1974) (Walden). In Wolffs, for example, the Fifth Circuit held that the extraordinary remedy of exclusion was inappropriate until such time as “widespread and repeated violations” of the Posse Comitatus Act demonstrated the need for such a remedy. Wolffs, 594 F.2d at 85; accord Walden, 490 F.2d at 377. We adopt the approach of Wolffs and Walden and hold that an exclusionary rule should not be applied to violations of 10 U.S.C. §§ 371-378 until a need to deter future" }, { "docid": "22625195", "title": "", "text": "on the use of military equipment by military personnel for civilian law enforcement purposes. Military personnel may provide certain expert advice, equipment maintenance, and training to civilian law enforcement officers, see 10 U.S.C. §§ 373, 374(a), but the blood tests at issue in this case concededly do not constitute the provision of expert advice or equipment maintenance. Nor, notwithstanding the Government’s contrary arguments, do we believe that the performance of ordinary DUI blood tests by military personnel for civilian law enforcement constitutes permissible training of civilians. Congress did not intend for the training exception to condone routine participation by military personnel in civilian law enforcement activities. Rather, Congress emphasized that the training and expertise exceptions “would not alter the traditional separation of the military from civilian law enforcement:” 1981 U.S.C.C.A.N. at 1792. Congress further explained that “[n]othing in [§ 373] contemplates the creation of large scale or elaborate training programs. Neither does the authority to provide expert advice create a loophole to allow regular or direct involvement of military personnel in what are fundamentally civilian law enforcement operations.” Id. In addition to permitting military personnel to train, advise, and maintain equipment for civilian authorities, Congress has authorized military personnel to engage in specific activities related to the enforcement of a handful of criminal laws. See 10 U.S.C. § 374(b). The blood test here neither falls within one of the categories of activities that can be performed by military personnel under § 374(b)(1)-(2) nor relates to the enforcement of any of the laws specified in § 374(b)(4). Nor does the general catch-all provision in 10 U.S.C. § 374(c) aid the Government here. In that statute, Congress has authorized the Defense Secretary to make Department of Defense personnel available to any Federal, State, or local civilian law enforcement agency to operate equipment for purposes other than described in subsection (b)(2) only to the extent that such support does not involve direct participation by such personnel in a civilian law enforcement operation unless such direct participation is otherwise authorized by law. 10 U.S.C. § 374(c) (emphasis added). In Al-Talib we had occasion to" }, { "docid": "1420899", "title": "", "text": "uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the law shall be fined not more than $10,000 or imprisoned not more than two years, or both. 18 U.S.C.A. § 1385 (West 1984). The Act by its own terms places no restrictions on Navy involvement with law enforcement agencies, accord United States v. Yunis, 924 F.2d 1086, 1093 (D.C.Cir.1991); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1339-40 (9th Cir.1987). Moreover, nothing in the Act’s legislative history suggests its application to naval operations. See H.R.Rep. No. 97-71 at 4, 1981 U.S.Code Cong. & Admin.News 1781, 1786 (Navy not bound by Posse Comitatus Act). Even if the Act were construed to apply to the Navy, see United States v. Ahumedo-Avendano, 872 F.2d 367, 372 n. 6 (11th Cir.1989) (citing in dicta circuit courts that have held that prohibitions of Act apply to Navy by implication or by executive act), the Act specifically excepts from its compass cases “expressly authorized by ... Act of Congress.” 18 U.S.C.A. § 1385. The National Drug Interdiction Improvement Act of 1986 created such an exception, providing for members of the Coast Guard to be assigned to duty on board naval vessels in drug interdiction areas for performance of law enforcement functions. See 10 U.S.C.A. § 379 (West Supp.1992); see also United States v. Borrego, 885 F.2d 822, 824 n. 1 (11th Cir.1989) (holding in dicta that § 379 constitutes exception to Posse Comitatus Act). In the case at bar, the Coast Guard did the actual boarding, arrest, interrogation, and ensuing investigation of all criminal matters. Consequently, the passive participation of the Navy in the arrest of the crew of the Apache III did not implicate the Posse Comitatus Act. D. Request for Jury Instruction Greenberg next argues that the district court committed reversible error by refusing to offer an instruction that purportedly summarized his theory of the case. His instruction stated in relevant part: It is the theory of the Defendant that at the time of his arrest that the vessel known as the Apache III was not" }, { "docid": "17203615", "title": "", "text": "to move to suppress the evidence or object to the introduction of the evidence obtained by military personnel and the testimony of military personnel in violation of the PCA, 10 U.S.C. § 375. Although the PCA forbids the use of only Army or Air Force personnel in non-military law enforcement activities, the Secretary of Defense has issued regulations, authorized by 10 U.S.C. § 375, prohibiting direct participation by all military personnel including members of the Navy in any civilian search, seizure, arrest, or other similar activity unless expressly authorized by law. The Government recognizes that the NCIS is the federal law enforcement agency which investigates those felony offenses that affect the interests of the Navy and Marines; consequently, they act as agents of the Navy and are bound by the provisions of the Posse Comitatus Act. Govt. Opp’n at 25; United States v. Yunis, 924 F.2d 1086, 1094 (D.C.Cir.1991). Yunis squarely held that “[rjegulations issued under 10 U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act....” 924 F.2d at 1094. However, even though that Act clearly restricts military involvement in civilian law enforcement, it is not the intent of the PCA to limit the military from investigating criminal activities committed by its own members whether such activities occur on or off a military base. Applewhite v. U.S. Air Force, 995 F.2d 997, 1001 (10th Cir.1993); United States v. Griley, 814 F.2d 967, 976 (4th Cir.1987). There can be no question that the Defendant, an Ensign in the Navy, was on active duty with the United States Navy in April 2007, the date of this offense. Given that fact, NCIS had an independent military purpose for participating in the investigation of Defendant’s activities. The cases cited by Defendant are distinguishable from this case because they all involved defendants who were not in the military, but were the subject of criminal investigation which did involve the participation of investigators who were members of the military. That is precisely the conduct prohibited by the Posse Comitatus Act. For these reasons, Defendant’s trial counsel was not ineffective in failing" }, { "docid": "15250276", "title": "", "text": "U.S.C. § 1385 places no restrictions on naval participation in law enforcement operations; an earlier version of the measure would have expressly extended the bill to the Navy, but the final legislation was attached to an Army appropriations bill and its language was accordingly limited to that service. See H.R. Rep. No. 71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in 1981 U.S.Code Cong. & Admin.News 1781, 1786 [hereinafter H.R. Rep. No. 71]; Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am.Crim.L.Rev. 703, 709-10 (1976). Reference to the Air Force was added in 1956, consistent with reassignment of Army aviation responsibilities to that new branch of the military. See H.R. Rep. No. 71 at 4, 1981 U.S.Code Cong: & Admin.News 1786. Nothing in this history suggests that we should defy the express language of the Posse Comita-tus Act by extending it to the Navy, and we decline to do so. Accord United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986); see H.R. Rep. No. 71 at 4, U.S.Code Cong. & Admin.News 1786 (Navy “not legally bound” by Posse Comitatus Act). Furthermore, some courts have taken the view that the Posse Comitatus Act imposes no restriction on use of American armed forces abroad, noting that Congress intended to preclude military intervention in domestic civil affairs. See Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); D’Aquino v. United States, 192 F.2d 338, 351 (9th Cir.1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). And even if these difficulties could be. overcome, a remedial problem would remain, as dismissal of all charges against Yunis might well be an inappropriate remedy if violations of the Posse Comitatus Act were found. See United States v. Cotten, 471 F.2d 744, 749 (9th Cir.) (rejecting dismissal as remedy for alleged violation of Posse Comitatus Act on Ker-Frisbie grounds), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973); see also United" }, { "docid": "16221385", "title": "", "text": "delegation of congressional power. . This legislation was quickly enacted in response to the Second Circuit’s decision in United States v. Gatlin, 216 F.3d 207 (2d Cir.2000), which highlighted a gap in prosecutions of civilian personnel living abroad with the military. . The government points to other statutes pertaining to the military's powers overseas, such as 10 U.S.C. § 374(b)(1)(D) and 18 U.S.C. § 351, arguing that these provisions “plainly envision foreign law enforcement activity.” We agree. These statutes underscore the point that Congress is clear when it wishes to be. Section 374(b)(1)(D) allows the Secretary of Defense, upon the request of a federal law enforcement agency, to make defense personnel available \"to operate equipment” with respect to \"a rendition of a suspected terrorist from a foreign'country to the United States to stand trial.” Section 351 allows the FBI to request assistance from the military, as well as \"any Federal, State, or local agency,” in “investigating]” kidnappings or assassinations of Congressional, Cabinet, and Supreme Court members. Not only do these statutes not speak to military arrest powers, but they define the universe (e.g., operating equipment or assisting in investigation) in which Congress has chosen to involve the militaiy in law enforcement overseas. Section 374(b)(1)(D) is one of a number of provisions, along with the Posse Comitatus Act, 18 U.S.C. § 1385, that actually limit military involvement in civilian law enforcement operations. In considering 10 U.S.C. §§ 371-80, we concluded that \"these sections impose limits on the use of American armed forces abroad.” United States v. Khan, 35 F.3d 426, 431 n. 6 (9th Cir.1994). . The relevant provision of the Gonzalez Act provides: The remedy against the United States provided by[the FTCA] for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician ... of the armed forces ... while acting within the scope of his duties or employment ... shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician ... whose act or omission gave rise to such action or" }, { "docid": "22625196", "title": "", "text": "law enforcement operations.” Id. In addition to permitting military personnel to train, advise, and maintain equipment for civilian authorities, Congress has authorized military personnel to engage in specific activities related to the enforcement of a handful of criminal laws. See 10 U.S.C. § 374(b). The blood test here neither falls within one of the categories of activities that can be performed by military personnel under § 374(b)(1)-(2) nor relates to the enforcement of any of the laws specified in § 374(b)(4). Nor does the general catch-all provision in 10 U.S.C. § 374(c) aid the Government here. In that statute, Congress has authorized the Defense Secretary to make Department of Defense personnel available to any Federal, State, or local civilian law enforcement agency to operate equipment for purposes other than described in subsection (b)(2) only to the extent that such support does not involve direct participation by such personnel in a civilian law enforcement operation unless such direct participation is otherwise authorized by law. 10 U.S.C. § 374(c) (emphasis added). In Al-Talib we had occasion to consider whether military participation was “direct” enough to violate the Posse Comitatus Act. There, the Air Force transported from Nebraska to Virginia a car and drugs, which the Drug Enforcement Administration planned to use as bait in a drug sting. We concluded that this “use of military resources ... had no direct impact on the defendants whatsoever” and so did not constitute a violation of the Act. Al-Talib, 55 F.3d at 930. In contrast to the logistical support in Al-Talib, which in no way engaged the military in an activity having a direct impact on the defendants, military personnel’s performance of a blood test would have a direct impact on a defendant — it would, in and of itself, constitute a Fourth Amendment search. Furthermore, the test would yield the primary evidence of guilt of a DUI offense and, should the driver not plead guilty and go to trial, the serviceman who performed the test likely would be called to testify. The performance of a blood test to determine whether a motorist has driven under" }, { "docid": "18789762", "title": "", "text": "the Sea Waltz. Therefore, the Navy activity does not fall within the narrow exception in section 374(c) and instead would appear to violate the terms of section 374(b). Section 374, however, cannot be read in isolation. It must be considered in the context of the entire chapter, particularly section 378, which is entitled “Nonpreemption of other law,” and states: “Nothing in this chapter shall be construed to limit the authority of the executive branch in the use of military personnel or equipment for civilian law enforcement purposes beyond that provided by law before December 1, 1981.” Section 378 requires that we determine the legal authority of the executive branch to use the Navy for civilian law enforcement purposes before December 1, 1981. If the exercise of authority here would have been within the legal authority of the executive branch if it had occurred prior to December 1, 1981, section 378 immunizes what would otherwise be a violation of section 374. The government concedes that prior to December 1, 1981, Naval Instruction 5820.7 (issued May 15, 1974 and still in effect today) adopted for the Navy, as a matter of policy, the restrictions of the Posse Comita-tus Act but authorized exceptions to this policy when specific approval of the Secretary of the Navy was granted. It is clear that the Navy’s direct assistance to the Coast Guard would violate this general policy. Since, however, the Secretary of the Navy, prior to December 1, 1981, had the legal authority to approve exceptions to this policy, this legal authority, pursuant to section 378, is not preempted by section 374. The pivotal question becomes whether the Secretary of the Navy in fact approved the Navy activity involved here. If so, there has been no violation of section 374. On July 29, 1982, the Secretary of the Navy, in a memorandum to the Secretary of Defense, specifically approved Navy assistance to the Coast Guard in support of drug interdiction operations. The geographical scope of this approval, however, is unclear. The Secretary of the Navy limited his approval to those activities listed in an enclosure that" }, { "docid": "271682", "title": "", "text": "conclusion on their assertion that the military involvement was so pervasive as to represent “use[ ] ... of the ... Air Force ... to execute the laws____” 18 U.S.C. § 1385. After carefully examining the record, the jurisprudence interpreting the Posse Comitatus Act, and recently enacted statutes regarding use of military equipment and personnel, see 10 U.S.C. §§ 371-378, we hold that the acts of the Government in the instant case do not warrant creation or extension of an exclusionary rule. The Posse Comitatus Act, which was passed shortly after the end of the Reconstruction Era, was designed to limit “the direct active use of federal troops by civil law enforcement officers” to enforce the laws of this nation. United States v. Red Feather, 392 F.Supp. 916, 922 (D.S.D.1975). See also H.R. Rep. No. 97-71, Part II, 97th Cong., 1st Sess. 3 (1981), reprinted in 1981 U.S. Code Cong. & Ad. News 1781, 1785. See generally Furman, Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act, 7 Mil.L.Rev. 85 (1960); Note, Don’t Call Out the Marines: An Assessment of the Posse Comitatus Act, 13 Tex.Tech L.Rev. 1467 (1982). Congress has also sought to clarify the role of the military through recent enactments. H.R. Rep. No. 97-71, supra, at 3. As codified, sections 371 and 372 of Title 10 allow the military to share information and equipment with civilian law enforcement officials in certain instances. Sections 374(a) and (b) allow the Secretary of Defense to assign military personnel to operate and maintain equipment loaned to civilian officials in order to “monitor[] and communicate[ ] the movement of air and sea traffic.” 10 U.S.C. §§ 371, 372, 374(a), (b). Moreover, in examining allegations that military involvement in civilian law enforcement violated the Posse Comitatus Act, courts have noted that “aerial photographic reconnaissance flights and other like activities” do not reflect direct military involvement violative of the Posse Comitatus Act. Red Feather, 392 F.Supp. at 925. See also United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D.1975), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir.1976) (per" }, { "docid": "13045648", "title": "", "text": "by the political branches, of its susceptibility in the light of its nature and posture of the specific ease, and of the possible consequences of judicial action.” Baker, 369 U.S. at 211-12, 82 S.Ct. at 707. We do not believe that the plaintiffs’ action should be dismissed on the basis of the political question doctrine. We note, as an initial matter, that governmental operations are a traditional subject of damage actions in the federal courts. See, e.g., Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (negligence in fighting fires); Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122,100 L.Ed. 48 (1955) (negligence in operating and maintaining a lighthouse). Thus, the federal courts have previously allowed damage actions alleging the negligent operation of naval vessels. See, e.g., United States v. United Continental Tuna Corp., 425 U.S. 164, 181-82, 96 S.Ct. 1319, 1329, 47 L.Ed.2d 653 (1976) (holding that a suit alleging that a naval vessel negligently collided with a merchant ship may be brought against the United States if it satisfies the reciprocity requirements of the Public Vessels Act); United States v. Lawter, 219 F.2d 559 (5th Cir.1955) (allowing suit for negligence during operation of an at-sea rescue); cf. United Air Lines, Inc. v. Wiener, 335 F.2d 379, 392-95 (9th Cir.) (allowing suit for aeronautic disaster arising from negligence during military training mission), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). Accordingly, the fact that the plaintiffs’ lawsuit involves the operation of a United States warship does not render it beyond judicial cognizance. Nor is the lawsuit rendered judicially unmanageable because the challenged conduct took place as part of an authorized military operation. The Supreme Court has made clear that the federal courts are capable of reviewing military decisions, particularly when those decisions cause injury to civilians. The controlling case is The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900). That case involved the seizure of two Spanish fishing vessels by United States naval forces engaged in a military blockade during the Spanish-American" }, { "docid": "15250275", "title": "", "text": "did not render his waiver invalid. Yunis I, 859 F.2d at 969. Similarly, we now find nothing in the record suggesting the sort of intentional, outrageous government conduct necessary to sustain appellant’s jurisdictional argument. Cf. Sami v. United States, 617 F.2d 755, 774 (D.C.Cir.1979) (finding “no shocking behavior characterized by abduction or brutality which would support an actionable constitutional claim”). B. Posse Comitatus Act Next, Yunis appeals from the district court’s denial of his motion to dismiss on the basis of the government’s alleged violation of the Posse Comitatus Act, 18 U.S.C. § 1385 (1988), which establishes criminal penalties for willful use of “any part of the Army or the Air Force” in law enforcement, unless expressly authorized by law. See United States v. Yunis, 681 F.Supp. 891 (D.D.C.1988). Despite the Posse Comitatus Act’s express limitation to the Army and Air Force, appellant seeks dismissal of the indictment on the grounds that the Navy played a direct role in Operation Goldenrod. We cannot agree that Congress’ words admit of any ambiguity. By its terms, 18 U.S.C. § 1385 places no restrictions on naval participation in law enforcement operations; an earlier version of the measure would have expressly extended the bill to the Navy, but the final legislation was attached to an Army appropriations bill and its language was accordingly limited to that service. See H.R. Rep. No. 71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in 1981 U.S.Code Cong. & Admin.News 1781, 1786 [hereinafter H.R. Rep. No. 71]; Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am.Crim.L.Rev. 703, 709-10 (1976). Reference to the Air Force was added in 1956, consistent with reassignment of Army aviation responsibilities to that new branch of the military. See H.R. Rep. No. 71 at 4, 1981 U.S.Code Cong: & Admin.News 1786. Nothing in this history suggests that we should defy the express language of the Posse Comita-tus Act by extending it to the Navy, and we decline to do so. Accord United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84" }, { "docid": "22284860", "title": "", "text": "Comitatus Act does not itself apply to the Navy, United States v. Roberts, 779 F.2d 565, 567 (9th Cir.1986), Congress has extended the substance of the Act to the Navy by a separate statute, 10 U.S.C. '§§ 371-382 (1994 & Supp.1996). This statute provides that no military personnel may directly participate in a civilian “search, seizure, arrest, or other similar activity” unless expressly authorized by law. § 375. This same statute provides that Coast Guard personnel placed on certain Navy ships to seize and arrest vessels smuggling narcotics must be placed there by the Department of Defense. § 379. Additionally, the Department of Defense may provide military personnel to operate equipment to detect, monitor and control sea traffic; to intercept vessels; and to operate equipment to facilitate communication under the MDLEA. § 374(b)(2). In this case, there was a seven-member Coast Guard Law Enforcement Detachment aboard the Navy ship, the Cape St. George. This- Coast Guard team boarded the Nataly I and searched the vessel. On the second day of the search, four Navy engineers helped transfer fluids among the fifteen tanks. This had to be done carefully to ensure the stability of the Nataly I. The Navy also transported equipment to assist with the search and showed the Coast Guard personnel how to use the equipment. After the cocaine was found, Navy personnel helped transfer the appellants to the Cape St. George, where Coast Guard personnel arrested, searched and interrogated them. Navy personnel then helped supervise the appellants, gave them medical attention and towed the Nataly I to the United States. Navy personnel did not search the Nataly I nor did they arrest or interrogate the appellants. The Navy’s assistance in this ease is similar to its assistance in United States v. Khan, 35 F.3d 426, 431-32 (9th Cir.1994). There, the Navy did not violate the applicable Posse Comitatus statutes'even though its personnel boarded the ship. Its naval personnel merely provided backup security and logistical support under the Coast Guard’s command and did not participate in the search of the ship or the arrest or interrogation of the crew." }, { "docid": "16221386", "title": "", "text": "arrest powers, but they define the universe (e.g., operating equipment or assisting in investigation) in which Congress has chosen to involve the militaiy in law enforcement overseas. Section 374(b)(1)(D) is one of a number of provisions, along with the Posse Comitatus Act, 18 U.S.C. § 1385, that actually limit military involvement in civilian law enforcement operations. In considering 10 U.S.C. §§ 371-80, we concluded that \"these sections impose limits on the use of American armed forces abroad.” United States v. Khan, 35 F.3d 426, 431 n. 6 (9th Cir.1994). . The relevant provision of the Gonzalez Act provides: The remedy against the United States provided by[the FTCA] for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician ... of the armed forces ... while acting within the scope of his duties or employment ... shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician ... whose act or omission gave rise to such action or proceeding. 10 U.S.C. § 1089(a) (1994). . It bears noting that most of the cases addressing damages under the ATCA have done so without the benefit of, or without reference to, Zicherman v. Korean Air Lines Co., 516 U.S. 217, 229, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996), in which the Supreme Court interpreted the damages provisions of the Warsaw Convention and concluded that it does not \"empower us to develop some common-law rule — under cover of general admiralty law or otherwise — that will supersede the normal federal disposition.” The Court held that the Convention \"provide[d] nothing more than a pass-through, authorizing us to apply the law that would govern in the absence of the Warsaw Convention,” which in that case was the Death on the High Seas Act, 46 U.S.C.App. § 761. Zicherman, 516 U.S. at 229, 116 S.Ct. 629. . Although the Second Circuit observed in Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 12 (2d Cir.1996), that \"the law is unsettled when it comes to applying either a" }, { "docid": "5341555", "title": "", "text": "States Forces personnel,” one category of which is the “civilian component.” This phrase, in turn, “includes the following:” “(b) Civilian employees on United States Forces operated vessels and aircraft. (This excludes contract operated, chartered, and General Agency Agreement vessels.)” Subsequently in paragraph 3b “United States Forces vessels and aircraft” are defined as “vessels and aircraft under the operational control of the United States Forces,” which “includes:” “(1) United States Forces oper-erated vessels and aircraft (commissioned Navy, Army, and Coast Guard ships; Civil Service manned Military Sea Transportation Service ships, United States Air Forces, Military Air Transport Service, Navy, Marine, Coast Guard, and Army aircraft). These vessels and aircraft will normally carry only United States Forces cargo, passengers, and crewmen, except for a limited number of non-United States nationality Civil Service crewmen and foreign Naval personnel. “(2) United States Forces controlled vessels and aircraft (contract operated, time chartered, General Agency Agreement ships, ships assigned to the United States Forces by a foreign country and chartered aircraft, but not including voyage or space charter). These vessels and aircraft will normally carry only United States Forces cargo, but crewmen, except for a limited number of United States Naval or Air Force crewmen, will be non-United States Forces personnel.” This circular — issued by the highest American military authority of the Far East — manifestly views merchant seamen, of the style of Robertson, as falling outside the “civilian component.” This is clear from the definition of that term found in paragraph 3a, and as well from the statement in 3b to the effect that crewmen on vessels and aircraft controlled by the United States Forces —which includes General Agency Agreement vessels — will, for the most part, “be non-United States Forces personnel.” The latter category certainly does not include members of the civilian component. Circular No. 8 makes provision for the issuance of special landing permits to crewmen of United States Forces controlled vessels — but in their issuance certain discretion seems to reside in the Japanese immigration authorities. Since, under Article IX of the Administrative Agreement, the United States may, in the service" }, { "docid": "22625198", "title": "", "text": "the influence of alcohol or drugs thus constitutes “direct participation in a civilian law enforcement operation.” See 10 U.S.C. § 374(c). Because such participation is not “otherwise authorized by law,” we conclude that Congress has not authorized military personnel to perform blood tests for civilian law enforcement agencies. This holding accords with Congress’s directive that the Secretary of Defense: prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law. 10 U.S.C. § 375. It also comports with the legislature’s explicit rejection of a proposed provision that would have permitted military personnel to make arrests and seizures in furtherance of civilian enforcement of drug laws. See 1981 U.S.C.C.A.N. at 1793. In sum, we interpret the Posse Comitatus Act and authorizing statutes in keeping with “the traditional American insistence on exclusion of the military from civilian law enforcement, which some have suggested is lodged in the Constitution.” Walden, 490 F.2d at 376. Although performance of blood tests by military person nel for civilian prosecutions may not be an egregious encroachment on civilian law enforcement efforts, it is up to Congress to authorize such searches, and it has yet to do so. B. For two reasons, however, this holding does not assist Johnson. First, we cannot conclude that the blood test at issue in this case .violated the Posse Comitatus Act because the record does not establish that military personnel actually performed this blood test. We know only that the test was performed at the Armed Forces Institute. That alone does not suffice to prove a violation of the Posse Comitatus Act because Congress has expressly authorized the use of military equipment and facilities by civilian agencies. Absent proof that military personnel performed the test, we decline to find a violation" }, { "docid": "22284859", "title": "", "text": "to sea where the cocaine is then loaded onto smaller vessels which land the cocaine, usually into Mexico. The cocaine is then smuggled into the United States. With twelve tons of cocaine on board, the Nataly I was obviously a mother ship. Its location off the Galapagos Islands, when it was ill-equipped for fishing, together with the other circumstances mentioned above, support the district court’s conclusion that the cocaine was destined for the United States. This provides a sufficient nexus between the defendants’ activities and the United States to satisfy the nexus requirement. II. Posse Comitatus Act The appellants moved for dismissal of the indictment or, in the alternative, for suppression of the seized cocaine, on the ground that the Navy’s participation in the seizure of the Nataly I violated the Posse Comitatus Act and 10 U.S.C. § 375. The Posse Comitatus Act establishes criminal penalties for use of the Army or Air Force in law enforcement, “unless expressly authorized by the Constitution or Act of Congress.” 18 U.S.C. § 1385 (1994). While the Posse Comitatus Act does not itself apply to the Navy, United States v. Roberts, 779 F.2d 565, 567 (9th Cir.1986), Congress has extended the substance of the Act to the Navy by a separate statute, 10 U.S.C. '§§ 371-382 (1994 & Supp.1996). This statute provides that no military personnel may directly participate in a civilian “search, seizure, arrest, or other similar activity” unless expressly authorized by law. § 375. This same statute provides that Coast Guard personnel placed on certain Navy ships to seize and arrest vessels smuggling narcotics must be placed there by the Department of Defense. § 379. Additionally, the Department of Defense may provide military personnel to operate equipment to detect, monitor and control sea traffic; to intercept vessels; and to operate equipment to facilitate communication under the MDLEA. § 374(b)(2). In this case, there was a seven-member Coast Guard Law Enforcement Detachment aboard the Navy ship, the Cape St. George. This- Coast Guard team boarded the Nataly I and searched the vessel. On the second day of the search, four Navy engineers" }, { "docid": "271687", "title": "", "text": "the suspect aircraft. The record indicates that this change in orbit did not interfere with the USAF’s military mission. The record also indicates that the crew commander refused a similar request by Agent Kern during another part of the mission. . The phrase \"posse comitatus” is literally translated from Latin as the “power of the county” and is defined at common law to refer to all those over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder. H.R.Rep. No. 97-71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in 1981 U.S. Code Cong. & Ad. News 1781, 1786 (citing 1 W. Blackstone, Commentaries 343-44). . Other portions of the enactment restrict the direct participation of military personnel in the interdiction of a vessel or aircraft or in a search, seizure or arrest unless such activity is otherwise authorized by law. 10 U.S.C. § 375. See also 10 U.S.C. § 376 (assistance provided by chapter not to affect the military preparedness of the United States). . Defendants’ reliance for creation of an exclusionary rule on People v. Burden, 94 Mich.App. 209, 288 N.W.2d 392 (1979), is particularly unwarranted since that decision was reversed by the Michigan Supreme Court, 411 Mich. 56, 303 N.W.2d 444 (1981). In Taylor v. State, 645 P.2d 522 (Ok.Cr.1982), the court applied an exclusionary rule to a violation of the Posse Comitatus Act. Even if this Court were to take the step of creating an exclusionary rule for the Posse Comitatus Act, the Taylor case is clearly distinguishable since it involved the use of military police in an undercover drug operation and search. . The House of Representatives report, which accompanied the enactment of 10 U.S.C. § 374(b), stated: The Committee anticipates, however, that an increased sensitivity to the needs of civilian law enforcement officials, particularly in drug enforcement, will permit more compatible mission planning and execution. For example, the scheduling of routine training missions can easily accomodate the need for improved intelligence information concerning drug trafficking in the Caribbean. H.R.Rep. No. 97-71, Part II, supra," }, { "docid": "1420916", "title": "", "text": "possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States.\" See 46 U.S.C.A. § 1903(h); see also United States v. Riker, 670 F.2d 987, 988 (11th Cir.1982) (construing same language of predecessor statute to \"fairly shout[ ]\" Congress’ intent to reach extraterritorial acts of possession). For purposes of jurisdiction and arrest under the statute, it is sufficient that the Apache III was a vessel of United States registry. See 46 U.S.C.A. § 1903(c). . Greenberg nevertheless argues that 10 U.S.C.A. § 374 (West Supp.1992) bars naval personnel from operating naval equipment for law enforcement purposes without the express authorization of the Secretary of Defense. See id. This section, however, must be read within the context of the entire chapter. See United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986). In particular, section 374 must be considered in light of section 379, which expressly dictates that the Secretary of Defense “provide that there be assigned on board every appropriate surface naval vessel at sea in a drug interdiction area members of the Coast Guard who are trained in law enforcement and have powers ... including the power to make arrests and to carry out searches and seizures.” Id. . In any event) the Posse Comitatus Act provides no basis for the proposed remedy of dismissal of all charges. See United States v. Yunis, 924 F.2d 1086, 1093-94 (D.C.Cir.1991); United States v. Cotten, 471 F.2d 744, 749 (9th Cir.), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973). Alternatively, Greenberg argues that a violation of the Act warrants application of an exclusionary rule. This Circuit has declined to fashion an exclusionary rule until such time as widespread and repeated violations of the Posse Comitatus Act demonstrate a need for such sanction. United States v. Wolffs, 594 F.2d 77, 85 (5th Cir.1979); see United States v. Garcia, 672 F.2d 1349, 1368 n. 33 (11th Cir.1982); United States v. Hartley; 678 F.2d 961, 978 (11th Cir.1982). Recent alleged violations of the Act have been few," }, { "docid": "16221384", "title": "", "text": "flag consent to board a foreign flag vessel on the high seas. Pub. L. No. 99-570, § 2015, 100 Stat. 3207, 3268 (repealed 1994). . The dissent believes we should ignore well-established principles of statutory construction and give Congress the benefit of the doubt because we have recognized that \"[d]elegation of foreign affairs authority is given ... broader deference than in the domestic arena.” Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1438 (9th Cir.1996). But Freedom to Travel and the other non-delegation cases cited by the dissent are inapplicable here. We have no quarrel with the position that Congress, in giving the Executive authority over matters of foreign affairs, may delegate authority through broad (albeit not limitless) directives. See Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965). Rather, we are simply saying that there is no evidence in the applicable statutory scheme that Congress ever granted the DEA the power to conduct arrests abroad. Hence, we do not address whether 21 U.S.C. § 878 is an impermissible delegation of congressional power. . This legislation was quickly enacted in response to the Second Circuit’s decision in United States v. Gatlin, 216 F.3d 207 (2d Cir.2000), which highlighted a gap in prosecutions of civilian personnel living abroad with the military. . The government points to other statutes pertaining to the military's powers overseas, such as 10 U.S.C. § 374(b)(1)(D) and 18 U.S.C. § 351, arguing that these provisions “plainly envision foreign law enforcement activity.” We agree. These statutes underscore the point that Congress is clear when it wishes to be. Section 374(b)(1)(D) allows the Secretary of Defense, upon the request of a federal law enforcement agency, to make defense personnel available \"to operate equipment” with respect to \"a rendition of a suspected terrorist from a foreign'country to the United States to stand trial.” Section 351 allows the FBI to request assistance from the military, as well as \"any Federal, State, or local agency,” in “investigating]” kidnappings or assassinations of Congressional, Cabinet, and Supreme Court members. Not only do these statutes not speak to military" }, { "docid": "271683", "title": "", "text": "Call Out the Marines: An Assessment of the Posse Comitatus Act, 13 Tex.Tech L.Rev. 1467 (1982). Congress has also sought to clarify the role of the military through recent enactments. H.R. Rep. No. 97-71, supra, at 3. As codified, sections 371 and 372 of Title 10 allow the military to share information and equipment with civilian law enforcement officials in certain instances. Sections 374(a) and (b) allow the Secretary of Defense to assign military personnel to operate and maintain equipment loaned to civilian officials in order to “monitor[] and communicate[ ] the movement of air and sea traffic.” 10 U.S.C. §§ 371, 372, 374(a), (b). Moreover, in examining allegations that military involvement in civilian law enforcement violated the Posse Comitatus Act, courts have noted that “aerial photographic reconnaissance flights and other like activities” do not reflect direct military involvement violative of the Posse Comitatus Act. Red Feather, 392 F.Supp. at 925. See also United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D.1975), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir.1976) (per curiam), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). It should also be noted that, even where a violation of the Posse Comitatus Act is found or suspected, courts have generally-found that creation or application of an exclusionary rule is not warranted. United States v. Wolffs, 594 F.2d 77 (5th Cir.1979); United States v. Roberts, 779 F.2d 565 (9th Cir.1986) (violation of Navy regulations and 10 U.S.C. §§ 371-378; no application or creation of exclusionary rule warranted); United States v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974); State v. Danko, 219 Kan. 490, 548 P.2d 819 (1976); State v. Sanders, 303 N.C. 608, 281 S.E.2d 7 (1981), cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed.2d 392 (1981). In Wolffs, this Court “pretermit[ted] discussion of whether there was a violation of the [Posse Comitatus Act] or [Army] regulation” in a case involving use of agents of the Army in a narcotics investigation. This Court stated: We need not decide" } ]

[ { "docid": "21907837", "title": "", "text": "C. A. 2d Cir. Motion of Authors League of America, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied. Mr. Justice Stewart would grant the petition for certiorari and set case for oral argument. Mr. Justice Douglas, dissenting. A book entitled Down These Mean Streets by Piri Thomas was purchased by the librarians of three junior high schools in School District 25 in Queens, New York. The novel describes in graphic detail sexual and drug and drug-related activities that are a part of everyday life for those who live in Spanish Harlem. Its purpose was to acquaint the youth of Queens with the problems of their contemporaries in this social setting. The book was objected to by some parents and, after a public meeting, the School Board by a vote of 5-3 banned it from the libraries. A later vote by the Board amended the order so the book is now kept on the shelves for direct loan to any parent who wants his or her children to have access to it. No child can borrow it directly. This suit was brought on behalf of a principal, a librarian, and various parents and children who request that the court declare the resolution adopted by the Board unconstitutional, and order the defendants to place the book in normal circulation in the libraries and enjoin them from interfering with other school libraries within their jurisdiction which desire to purchase the book. Actions of school boards are not immune from constitutional scrutiny. Meyer v. Nebraska, 262 U. S. 390 (1923); Bartels v. Iowa, 262 U. S. 404 (1923); Epperson v. Arkansas, 393 U. S. 97 (1968); Tinker v. Des Moines School Dist., 393 U. S. 503 (1969). Academic freedom has been upheld against attack on various fronts. Sweezy v. New Hampshire, 354 U. S. 234 (1957); Wieman v. Updegraff, 344 U. S. 183 (1952); Keyishian v. Board of Regents, 385 U. S. 589 (1967). The First Amendment involves not only the right to speak and publish, but also the right to hear, to learn, to know. Martin v. Struthers," } ]

[ { "docid": "1462506", "title": "", "text": "ORDER JOHNSON, Chief Judge. Plaintiff was dismissed from her position as a high school teacher in the Montgomery public schools for assigning a certain short story to her junior (eleventh grade) English classes. In her complaint, which was filed with this Court on April 27, 1970, plaintiff alleges that defendants, in ordering her dismissal, violated her First Amendment ^ right to academic freedom and her Fourteenth Amendment right to due process of law. Plaintiff’s claim for damages and request for jury trial as contained in her initial complaint were stricken by amendment. The defendants are the members of the Montgomery County Board of Education, the Superintendent of Schools of the county, the Associate Superintendent, and the Principal of plaintiff’s high school. Plaintiff’s request for injunctive relief is authorized under the Civil Rights Act of 1871, 42 U.S.C. § 1983. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1343(3) and (4). Plaintiff was graduated with high honors from Troy State University in June, 1969. Upon graduation, she entered into a one-year contract to teach English and Spanish at Jefferson Davis High School in Montgomery, such contract to commence in October, 1969. On April 21, 1970, plaintiff assigned as outside reading to her junior English classes a story, entitled “Welcome to the Monkey House.” The story, a comic satire, was selected by plaintiff to give her students a better understanding of one particular genre of western literature — the short story. The story’s author, Kurt Vonnegut, Jr., is a prominent contemporary writer who has published numerous short stories and novels, including The Cat’s Cradle and a recent best seller, Slaughter-House Five. The following morning, plaintiff was called to Principal Rutland’s office for a conference with him and the Associate Superintendent of the school system. Both men expressed their displeasure with the content of the story, which they described as “literary garbage”, and with the “philosophy” of the story, which they construed as condoning, if not encouraging, “the killing off of el derly people and free sex.” They also expressed concern over the fact that three of plaintiff’s students" }, { "docid": "9687425", "title": "", "text": "normal and perverse, as well as episodes of drug shooting are graphically described. The book has been made available to the court and in a soft cover reprint is available to the public for an investment of $1.25. Presumably the educational value of this work, aside from whatever literary merit it may have, is to acquaint the predominantly white, middle-class junior high school students of Queens County with the bitter realities facing their contemporaries in Manhattan’s Spanish Harlem. Some parents objected to the public school library stocking the book, which they claimed would have an adverse moral and psychological effect on 11 to 15 year old children, principally because of the obscenities and explicit sexual interludes. The plaintiffs on the other hand have supplied affidavits from psychologists, teachers, and even children who claim the book is valuable and had no adverse effect on the development of the children of the District. One thirteen year old boy solemnly swears and assures us that the book has “literary merits” and is not a “corruptive influence”. Since the Legislature of the State of New York has by law determined that the responsibility for the selection of materials in the public school libraries in New York City is to be vested in the Community School Board (n. 1, supra), and the Commissioner of Education of that State has defined the purposes of the public school library, and in further view of the procedures for administrative and state court review provided in New York (nn. 2 and 3, supra), we do not consider it appropriate for this court to review either the wisdom or the efficacy of the determinations of the Board. Our function is purely one of constitutional adjudication on the facts and the record before us: has the Board transgressed the first amendment rights of the plaintiff teachers, parents, librarian and children. In its most recent pronouncement on the subject the Supreme Court has stated: “By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of" }, { "docid": "17589014", "title": "", "text": "autobiography of Captain Eddie Rickenbacker be purchased for use in the English course. It is modern and it fills the need of providing material which will inspire and educate the students as well as teach them high moral values and provide the opportunity to learn from a man of exceptional ability and understanding. 3. For the same reason, it is recommended that the following books be purchased for immediate use as required supplemental reading in the high school social studies program: Herbert Hoover, a biography by Eugene Lyons; Reminiscences of Douglas MacArthur 4. It is also recommended in the interest of a balanced program that One Day in The Life of Ivan Denisovich by A. I. Solzhenitsyn, be purchased as a supplemental reader for the high school social studies program. 5. It is also recommended that copies of all of the above books be placed in the library of each secondary school. 6. It is also recommended that Cats Cradle, which was written by the same character (Vennegutter) who wrote, using the term loosely, God Bless You Mr. Rosewater, and which has been used as a textbook, although never legally adopted by the Board, be withdrawn immediately and all copies disposed of in accordance with statutory procedure. 7. Finally, it is recommended that the McGuffy Readers be bought as supplemental readers for enrichment program purposes for the elementary schools, since they seem to offer so many advantages in vocabulary, content and sentence structure over the drivel being pushed today. While we recognize that the minute quoted above is designated as a “minority report,” we find it significant in view of intervenor Cain’s active role in the removal process and the fact that it offers the only official clue to the reasons for the School Board majority’s two book removal motions. The Board’s silence is extraordinary in view of the intense community controversy and the expressed professional views of the faculty favorable to the books concerned. In the absence of any explanation of the Board’s action which is neutral in First Amendment terms, we must conclude that the School Board removed" }, { "docid": "17589016", "title": "", "text": "the books because it found them objectionable in content and because it felt that it had the power, unfettered by the First Amendment, to censor the school library for subject matter which the Board members found distasteful. Neither the State of Ohio nor the Strongsville School Board was under any federal constitutional compulsion to provide a library for the Strongsville High School or to choose any particular books. Once having created such a privilege for the benefit of its students, however, neither body could place conditions on the use of the library which were related solely to the social or political tastes of school board members. The Supreme Court long ago said: “It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing conditions upon a benefit or privilege.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967). See also Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). A public school library is also a valuable adjunct to classroom discussion. If one of the English teachers considered Joseph Heller’s Catch 22 to be one of the more important modern American novels (as, indeed, at least one did), we assume that no one would dispute that the First Amendment’s protection of academic freedom would protect both his right to say so in class and his students’ right to hear him and to find and read the book. Obviously, the students’ success in this last endeavor would be greatly hindered by the fact that the book sought had been removed from the school library. The removal of books from a school library is a much more serious burden upon freedom of classroom discussion than the action found unconstitutional in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct, 733, 21 L.Ed.2d 731" }, { "docid": "505681", "title": "", "text": "conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. It is the tension between these necessary administrative powers and the First Amendment rights of those within the school system that underlies the conflict in this case. Clearly, a school committee can determine what books will go into a library and, indeed, if there will be a library at all. But the question presented here is whether a school committee has the same degree of discretion to order a book removed from a library. Two federal courts of appeal addressed this issue in cases involving factual patterns similar to that involved here. In Presidents Council District 25 v. Community School Board No. 25, 457 F.2d 289 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972), the Second Circuit upheld a school board’s removal of the book Down These Mean Streets from a high school library. In contrast, the school board’s removal of a Kurt Vonnegut novel from a school library was set aside by the Sixth Circuit in the case of Minarcini v. Strongsville City School District, 541 F.2d 577 (1976). Defendants’ heavy reliance on Presidents Council presumes incorrectly that the holding there would afford a school committee the absolute right to remove a disfavored book from a library, without any concern for the First Amendment rights of students and faculty. Such reliance overlooks the Second Circuit’s implicit acknowledgment that, however absolute may be a school board’s discretion in selecting books, there are boundaries to its authority to remove a book from a library. It would seem clear to us that books which become obsolete or irrelevant or where improperly selected initially, for whatever reason, can be removed by the same authority which was empowered to make the selection in the first place. 457 F.2d at 293. Here, there is no evidence that the challenged anthology is obsolete. Indeed, there was ample evidence to support the plaintiffs’ assertion that the work is relevant to a number of courses taught at Chelsea High School. No" }, { "docid": "17589012", "title": "", "text": "administration of any library, whether it be a university or particularly a public junior high school, involves a constant process of selection and winnowing based not only on educational needs but financial and architectural realities. To suggest that the shelving or unshelving of books presents a constitutional issue, particularly where there is no showing of a curtailment of freedom of speech or thought, is a proposition we cannot accept. Id. at 293. (Emphasis added.) (Footnote omitted.) The District Judge in our instant case appears to have read this paragraph as upholding an absolute right on the part of this school board to remove from the library and presumably to destroy any books it regarded unfavorably without concern for the First Amendment. We do not read the Second Circuit opinion so broadly (see qualifying clause italicized above). If it were unqualified, we would not follow it. A library is a storehouse of knowledge. When created for a public school it is an important privilege created by the state for the benefit of the students in the school. That privilege is not subject to being withdrawn by succeeding school boards whose members might desire to “winnow” the library for books the content of which occasioned their displeasure or disapproval. Of course, a copy of a book may wear out. Some books may become obsolete. Shelf space alone may at some point require some selection of books to be retained and books to be disposed of. No such rationale is involved in this case, however. The sole explanation offered by this record is provided by the School Board’s minutes of July 17, 1972, which read as follows: Mrs. Wong reviewed the Citizens Committee report regarding adoption of “God Bless You Mr. Rosewater”. Dr. Cain presented the following minority report: 1. It is recommended that God Bless .You Mr. Rosewater not be purchased, either as a textbook, supplemental reading book or library book. The book is completely sick. One secretary read it for one-half hour and handed it back to the reviewer with the written comment, “GARBAGE”. 2. Instead, it is recommended that the" }, { "docid": "17589004", "title": "", "text": "EDWARDS, Circuit Judge. This record presents a vivid story of heated community debate over what sort of books should be 1) selected as high school text books, 2) purchased for a high school library, 3) removed from a high school library, or 4) forbidden to be taught or assigned in a high school classroom. The setting of this controversy is the high school in Strongsville, Ohio, a suburb of Cleveland. This case originated as a class action brought under 42 U.S.C. § 1983 (1970) and 28 U.S.C. § 1343(3) (1970) against the Strongsville City School District, the members of the Board of Education and the Superintendent of the school district by five public high school students through their parents, as next friends. The suit claimed violation of First and Fourteenth Amendment rights in that the school board, disregarding the recommendation of the faculty, refused to approve Joseph Heller’s Catch 22 and Kurt Vonnegut’s God Bless You, Mr. Rosewater as texts or library books, ordered Vonnegut’s Cat’s Cradle and Heller’s Catch 22 to be removed from the library, and issued resolutions which served to prohibit teacher and student discussion of these books in class or their use as supplemental reading. The original complaint produced a counterclaim for “malicious prosecution” by one of the defendant school board members, Arthur L. Cain, and a motion to intervene as defendants filed on behalf of still other students in the high school by their parents, indicating that plaintiffs’ requested relief was entirely antagonistic to the wishes and interests of the intervenors. The District Judge denied motions for summary judgment by defendants and intervenors, dismissed the counterclaims of defendant Cain, tried the case on the original complaint, and dismissed it after entering findings of fact and conclusions of law holding that the defendants had not violated any First or Fourteenth Amendment rights of the plaintiffs. On review of the briefs and records filed in this court, and the oral arguments heard before us, we affirm the dismissal of the counterclaims of defendant Arthur L. Cain for the reasons set forth in the District Judge’s order of" }, { "docid": "505680", "title": "", "text": "L.Ed.2d 228 (1968). Students have the right to express themselves in non-disruptive political protest, Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and the right not to be forced to express ideas with which they disagree, West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). In short, the First Amendment is not merely a mantle which students and faculty must doff when they take their places in the classroom. It is clear despite such intervention, however, that local authorities are, and must continue to be, the principal policy makers in the public schools. School committees require a flexible and comprehensive set of powers to discharge the challenging tasks that confront them. As the Court stated in Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968): By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. It is the tension between these necessary administrative powers and the First Amendment rights of those within the school system that underlies the conflict in this case. Clearly, a school committee can determine what books will go into a library and, indeed, if there will be a library at all. But the question presented here is whether a school committee has the same degree of discretion to order a book removed from a library. Two federal courts of appeal addressed this issue in cases involving factual patterns similar to that involved here. In Presidents Council District 25 v. Community School Board No. 25, 457 F.2d 289 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972), the Second Circuit upheld a school board’s removal of the book Down These Mean Streets from a high school library. In contrast, the school board’s removal of a Kurt Vonnegut novel from a school" }, { "docid": "9687431", "title": "", "text": "the repository, at public expense, for books which are deemed by the proper authorities to be without merit either as works of art or science, simply because they are not obscene within the statute. If someone authored a book advocating that the earth was flat, it could hardly be argued that the work could not be removed from the public school library unless it was also obscene. Appellants concede, or at least do not reject, the proposition that the Board has ultimate authority for the initial selection of the public school library collection. They suggest, however, that we have a different case where, as here, the book was once shelved and is now removed. They analogize the shelving and unshelving of a book to the constitutional right of a person to obtain public employment and his rights to retain such employment when it is sought to be terminated. This concept of a book acquiring tenure by shelving is indeed novel and unsupportable under any theory of constitutional law we can discover. It would seem clear to us that books which become obsolete or irrelevant or where improperly selected initially, for whatever reason, can be removed by the same authority which was empowered to make the selection in the first place. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) is equally far afield. There the court did intrude into the field of public education by invalidating a regulation of school principals which suspended students who wore black armbands to classes symbolizing their objection to hostilities in Vietnam. This was deemed a violation of their right to free speech under the first amendment in the absence of a showing that the conduct of the students materially disrupted classwork or involved substantial disorder or invasion of the rights of others. The appellant conveniently ignores the factual setting of Tinker but would have us apply its test. Since the shelving of Down These Mean Streets did not create any disruption or disorder, it is argued, it should remain on the shelf. There is here" }, { "docid": "22099808", "title": "", "text": "at most creates a genuine issue of material fact on the critical question of the credibility of petitioners’ justifications for their decision: On that issue, it simply cannot be said that there is no genuine issue as to any material fact. The mandate shall issue forthwith. Affirmed. The Amendment provides in pertinent part that “Congress shall make no law. . . abridging the freedom of speech, or of the press.” It applies to the States by virtue of the Fourteenth Amendment. Gitlow v. New York, 268 U. S. 652, 666 (1925); Grosjean v. American Press Co., 297 U. S. 233, 244 (1936). The District Court noted, however, that petitioners “concede that the books are not obscene.” 474 F. Supp. 387, 392 (EDNY 1979). The nine books in the High School library were: Slaughter House Five, by Kurt Vonnegut, Jr.; The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice, of anonymous authorship; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain’t Nothin’ But A Sandwich, by Alice Childress; and Soul On Ice, by Eldridge Cleaver. The book in the Junior High School library was A Reader for Writers, edited by Jerome Archer. Still another listed book, The Fixer, by Bernard Malamud, was found to be included in the curriculum of a 12th-grade literature course. 474 F. Supp., at 389, and nn. 2-4. The Superintendent of Schools objected to the Board’s informal directive, noting: “[W]e already have a policy . . . designed expressly to handle such problems. It calls for the Superintendent, upon receiving an objection to a book or books, to appoint a committee to study them and make recommendations. I feel it is a good policy — and it is Board policy — and that it should be followed in this instance. Furthermore, I think it can be followed quietly and in such a way as to reduce, perhaps avoid, the public furor which has always attended such issues in the past.” App. 44. The Board responded to" }, { "docid": "9687430", "title": "", "text": "York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) is puzzling. In that case the Court upheld the constitutionality of a New York statute (N.Y. Penal Law § 484-h (McKinney’s Con-sol.Laws, c. 40, 1967)) which made it a crime to sell defined obscene material to minors under 17 years of age, whether or not the material would be obscene for adults. In upholding the concept of “variable obscenity” the court found the statute to be a rational legislative determination that the exposure of minors to such materials might be harmful and that the statute did not involve any invasion of constitutionally protected freedoms. Appellants’ reading of the case as authority for the proposition that minors have an unqualified first amendment right of access to books, unless they are obscene under the statute, is totally unjustified. It equates the public school library, which has a function as an adjunct to the educational venture, with the entrepreneur seller of books who has no comparable responsibility. The public school library obviously does not have to become the repository, at public expense, for books which are deemed by the proper authorities to be without merit either as works of art or science, simply because they are not obscene within the statute. If someone authored a book advocating that the earth was flat, it could hardly be argued that the work could not be removed from the public school library unless it was also obscene. Appellants concede, or at least do not reject, the proposition that the Board has ultimate authority for the initial selection of the public school library collection. They suggest, however, that we have a different case where, as here, the book was once shelved and is now removed. They analogize the shelving and unshelving of a book to the constitutional right of a person to obtain public employment and his rights to retain such employment when it is sought to be terminated. This concept of a book acquiring tenure by shelving is indeed novel and unsupportable under any theory of constitutional law we can discover. It would seem clear" }, { "docid": "17589011", "title": "", "text": "Rosewater and Cat’s Cradle by Kurt Vonnegut, Jr., are not on trial in this proceeding.” Further he stated, “Literary value of the three novels [has] been conceded by the parties . . . ” and that “obscenity as defined in the Supreme Court’s pronouncements is eliminated as an issue herein by agreement of counsel.” These holdings do not appear to be disputed on this appeal, and we accept them. The District Judge, in dismissing the complaint concerning removal from the li brary of Heller’s Catch 22 and Vonnegut’s Cat’s Cradle, relied strongly upon a Second Circuit opinion in Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (2nd Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972).\" In that case, after noting, as we have above, that some authorized body has to make a determination as to the choice of books for texts or for .the library, the Second Circuit continued by discussing a parallel right on the part of a board to “winnow” the library: The administration of any library, whether it be a university or particularly a public junior high school, involves a constant process of selection and winnowing based not only on educational needs but financial and architectural realities. To suggest that the shelving or unshelving of books presents a constitutional issue, particularly where there is no showing of a curtailment of freedom of speech or thought, is a proposition we cannot accept. Id. at 293. (Emphasis added.) (Footnote omitted.) The District Judge in our instant case appears to have read this paragraph as upholding an absolute right on the part of this school board to remove from the library and presumably to destroy any books it regarded unfavorably without concern for the First Amendment. We do not read the Second Circuit opinion so broadly (see qualifying clause italicized above). If it were unqualified, we would not follow it. A library is a storehouse of knowledge. When created for a public school it is an important privilege created by the state for the benefit of the students in the" }, { "docid": "9687426", "title": "", "text": "Legislature of the State of New York has by law determined that the responsibility for the selection of materials in the public school libraries in New York City is to be vested in the Community School Board (n. 1, supra), and the Commissioner of Education of that State has defined the purposes of the public school library, and in further view of the procedures for administrative and state court review provided in New York (nn. 2 and 3, supra), we do not consider it appropriate for this court to review either the wisdom or the efficacy of the determinations of the Board. Our function is purely one of constitutional adjudication on the facts and the record before us: has the Board transgressed the first amendment rights of the plaintiff teachers, parents, librarian and children. In its most recent pronouncement on the subject the Supreme Court has stated: “By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968) (footnote omitted). After a careful review of the record before us and the precedents we find no impingement upon any basic constitutional values. Since we are dealing not with the collection of a public book store but with the library of a public junior high school, evidently some authorized person or body has to make a determination as to what the library collection will be. It is predictable that no matter what choice of books may be made by whatever segment of academe, some other person or group may well dissent. The ensuing shouts of book burning, witch hunting and violation of academic freedom hardly elevate this intramural strife to first amendment constitutional proportions. If it did, there would be a constant intrusion of the judiciary into the internal affairs of the school. Academic freedom is scarcely fostered by" }, { "docid": "17589013", "title": "", "text": "school. That privilege is not subject to being withdrawn by succeeding school boards whose members might desire to “winnow” the library for books the content of which occasioned their displeasure or disapproval. Of course, a copy of a book may wear out. Some books may become obsolete. Shelf space alone may at some point require some selection of books to be retained and books to be disposed of. No such rationale is involved in this case, however. The sole explanation offered by this record is provided by the School Board’s minutes of July 17, 1972, which read as follows: Mrs. Wong reviewed the Citizens Committee report regarding adoption of “God Bless You Mr. Rosewater”. Dr. Cain presented the following minority report: 1. It is recommended that God Bless .You Mr. Rosewater not be purchased, either as a textbook, supplemental reading book or library book. The book is completely sick. One secretary read it for one-half hour and handed it back to the reviewer with the written comment, “GARBAGE”. 2. Instead, it is recommended that the autobiography of Captain Eddie Rickenbacker be purchased for use in the English course. It is modern and it fills the need of providing material which will inspire and educate the students as well as teach them high moral values and provide the opportunity to learn from a man of exceptional ability and understanding. 3. For the same reason, it is recommended that the following books be purchased for immediate use as required supplemental reading in the high school social studies program: Herbert Hoover, a biography by Eugene Lyons; Reminiscences of Douglas MacArthur 4. It is also recommended in the interest of a balanced program that One Day in The Life of Ivan Denisovich by A. I. Solzhenitsyn, be purchased as a supplemental reader for the high school social studies program. 5. It is also recommended that copies of all of the above books be placed in the library of each secondary school. 6. It is also recommended that Cats Cradle, which was written by the same character (Vennegutter) who wrote, using the term loosely, God" }, { "docid": "22099807", "title": "", "text": "Review Committee— the advice of which was later rejected without explanation. In sum, respondents’ allegations and some of the evidentiary materials presented below do not rule out the possibility that petitioners’ removal procedures were highly irregular and ad hoc — the antithesis of those procedures that might tend to allay suspicions regarding petitioners’ motivations. Construing these claims, affidavit statements, and other evidentiary materials in a manner favorable to respondents, we cannot conclude that petitioners were “entitled to a judgment as a matter of law.” The evidence plainly does not foreclose the possibility that petitioners’ decision to remove the books rested decisively upon disagreement with constitutionally protected ideas in those books, or upon a desire on petitioners’ part to impose upon the students of the Island Trees High School and Junior High School a political orthodoxy to which petitioners and their constituents adhered. Of course, some of the evidence before the District Court might lead a finder of fact to accept petitioners’ claim that their removal decision was based upon constitutionally valid concerns. But that evidence at most creates a genuine issue of material fact on the critical question of the credibility of petitioners’ justifications for their decision: On that issue, it simply cannot be said that there is no genuine issue as to any material fact. The mandate shall issue forthwith. Affirmed. The Amendment provides in pertinent part that “Congress shall make no law. . . abridging the freedom of speech, or of the press.” It applies to the States by virtue of the Fourteenth Amendment. Gitlow v. New York, 268 U. S. 652, 666 (1925); Grosjean v. American Press Co., 297 U. S. 233, 244 (1936). The District Court noted, however, that petitioners “concede that the books are not obscene.” 474 F. Supp. 387, 392 (EDNY 1979). The nine books in the High School library were: Slaughter House Five, by Kurt Vonnegut, Jr.; The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice, of anonymous authorship; Laughing Boy, by Oliver LaFarge; Black Boy," }, { "docid": "9687433", "title": "", "text": "no problem of freedom of speech or the expression of opinions on the part of parents, teachers, students or librarians. As we have pointed out, the discussion of the book or the problems which it encompasses or the ideas it espouses have not been prohibited by the Board’s action in removing the book. The administration of any library, whether it be a university or particularly a public junior high school, involves a constant process of selection and winnowing based not only on educational needs but financial and architectural realities. To suggest that the shelving or unshelving of books presents a constitutional issue, particularly where there is no showing of a curtailment of freedom of speech or thought, is a proposition we cannot accept. Appellant finally urges upon us two cases Keefe v. Geanakos, 418 F.2d 359 (1st Cir.1969) and Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970). Both of these eases involved high school teachers of junior and senior students who assigned material for outside reading which school officials found offensive and inappropriate. Upon a refusal to comply with the orders of school authorities to desist, the teachers were discharged. To the extent that these cases hold that first amendment rights have been violated whenever a district court disagrees with the judgment of school officials as to the propriety of material assigned by a teacher to students, we are not in accord. In any event, both cases involved the discharge of teachers with concomitant issues of procedural due process which are not present here and therefore the cases are not controlling. In view of the facts in the record before us and the controlling precedents, we find no constitutional infirmity in the resolutions of the Board. Affirmed. . N.Y.Educ.Law, McKinney’s Consol.Laws, c. 16, § 2590-e(3) (McKinney 1970) provides: § 2590-e. Powers and duties of community boards Each community board shall have all the powers and duties, vested by law in, or duly delegated to, the local school board districts and the board of education of the city district on the effective date of this article, not inconsistent with the provisions of" }, { "docid": "9687432", "title": "", "text": "to us that books which become obsolete or irrelevant or where improperly selected initially, for whatever reason, can be removed by the same authority which was empowered to make the selection in the first place. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) is equally far afield. There the court did intrude into the field of public education by invalidating a regulation of school principals which suspended students who wore black armbands to classes symbolizing their objection to hostilities in Vietnam. This was deemed a violation of their right to free speech under the first amendment in the absence of a showing that the conduct of the students materially disrupted classwork or involved substantial disorder or invasion of the rights of others. The appellant conveniently ignores the factual setting of Tinker but would have us apply its test. Since the shelving of Down These Mean Streets did not create any disruption or disorder, it is argued, it should remain on the shelf. There is here no problem of freedom of speech or the expression of opinions on the part of parents, teachers, students or librarians. As we have pointed out, the discussion of the book or the problems which it encompasses or the ideas it espouses have not been prohibited by the Board’s action in removing the book. The administration of any library, whether it be a university or particularly a public junior high school, involves a constant process of selection and winnowing based not only on educational needs but financial and architectural realities. To suggest that the shelving or unshelving of books presents a constitutional issue, particularly where there is no showing of a curtailment of freedom of speech or thought, is a proposition we cannot accept. Appellant finally urges upon us two cases Keefe v. Geanakos, 418 F.2d 359 (1st Cir.1969) and Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970). Both of these eases involved high school teachers of junior and senior students who assigned material for outside reading which school officials found offensive and inappropriate. Upon a refusal" }, { "docid": "17589010", "title": "", "text": "omitted.) II THE REMOVAL OF CERTAIN BOOKS FROM THE SCHOOL LIBRARY The record discloses that at a special meeting of the Strongsville Board of Education on August 19, 1972, according to the official minutes, the following motion was made and adopted: Dr. Cain moved, seconded by Mr. Henzey, that the textbook entitled Cat’s Cradle not be used any longer as a text or in the library in the Strongsville Schools. Discussion. Dr. Cain moved the question. Mr. Henzey requested the Clerk to call for the vote. Roll call: Ayes: Dr. Cain, Mr. Henzey, Mrs. Wong Nays: Mr. Woollett Motion carried. Similarly at a meeting of the Strongsville Board of Education on August 31,1972, the following action was recorded in the minutes: Mrs. Wong moved, seconded by Dr. Cain, that the textbook Catch 22 be removed from the Library in the Strongsville Schools. Roll call: Ayes: Mr. Ramsey, Mrs. Wong, Dr. Cain Nays: Mr. Woollett Motion carried. In his opinion the District Judge held that “the novels Catch 22 by Joseph Heller, God Bless You, Mr. Rosewater and Cat’s Cradle by Kurt Vonnegut, Jr., are not on trial in this proceeding.” Further he stated, “Literary value of the three novels [has] been conceded by the parties . . . ” and that “obscenity as defined in the Supreme Court’s pronouncements is eliminated as an issue herein by agreement of counsel.” These holdings do not appear to be disputed on this appeal, and we accept them. The District Judge, in dismissing the complaint concerning removal from the li brary of Heller’s Catch 22 and Vonnegut’s Cat’s Cradle, relied strongly upon a Second Circuit opinion in Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (2nd Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972).\" In that case, after noting, as we have above, that some authorized body has to make a determination as to the choice of books for texts or for .the library, the Second Circuit continued by discussing a parallel right on the part of a board to “winnow” the library: The" }, { "docid": "1731140", "title": "", "text": "OPINION STEIN, District Judge. In this copyright infringement action, Random House, Inc. seeks to enjoin Rosetta Books LLC and its Chief Executive Officer from selling in digital format eight specific works on the grounds that the authors of the works had previously granted Random House — not Rosetta Books— the right to “print, publish and sell the work[s] in book form.” Rosetta Books, on the other hand, claims it is not infringing upon the rights those authors gave Random House because the licensing agreements between the publisher and the author do not . include a grant of digital or electronic rights. Relying on the language of the contracts and basic principles of contract interpretation, this Court finds that the right to “print, publish and sell the work[s] in book form” in the contracts at issue does not include the right to publish the works in the format that has come to be known as the “ebook.” Accordingly, Random House’s motion for a preliminary injunction is denied. BACKGROUND In the year 2000 and the beginning of 2001, Rosetta Books contracted with several authors to publish certain of their works — including The Confessions of Nat Turner and Sophie’s Choice by William Styron; Slaughterhouse-Five, Breakfast of Champions, The Sirens of Titan, Cat’s Cradle, and Player Piano by Kurt Vonnegut; and Promised Land by Robert B. Parker — in digital format over the internet. (Def. Ex. 21-23; http://www.rosetta-books.com/pages/about_us.html.) On February 26, 2001 Rosetta Books launched its ebook business, offering those titles and others for sale in digital format. (Cantos Aff. ¶ 2, Ex. A; http://www.rosetta-books.com). The next day, Random House filed this complaint accusing Rosetta Books of committing copyright infringement and tortiously interfering with the contracts Random House had whth Messrs. Parker, Styron and Vonnegut by selling its ebooks. It simultaneously moved for a preliminary injunction prohibiting Rosetta from infringing plaintiffs copyrights. A. Ebooks Ebooks are “digital book[s] that you can read on a computer screen or an electronic device.” (Hrg. at 13; http://www.roset.ta-books.com/pages/about_ebooks.html) Ebooks are created by converting digitized text into a format readable by computer software. The text can be viewed" }, { "docid": "17589009", "title": "", "text": "(1968): Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” Shelton v. Tucker, 364 U.S. 479, 487 [81 S.Ct. 247, 251, 5 L.Ed.2d 231] (1960). As this Court said in Keyishian v. Board of Regents, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.” 385 U.S. 589, 603 [87 S.Ct. 675, 683,17 L.Ed.2d 629] (1967). (Footnote omitted.) II THE REMOVAL OF CERTAIN BOOKS FROM THE SCHOOL LIBRARY The record discloses that at a special meeting of the Strongsville Board of Education on August 19, 1972, according to the official minutes, the following motion was made and adopted: Dr. Cain moved, seconded by Mr. Henzey, that the textbook entitled Cat’s Cradle not be used any longer as a text or in the library in the Strongsville Schools. Discussion. Dr. Cain moved the question. Mr. Henzey requested the Clerk to call for the vote. Roll call: Ayes: Dr. Cain, Mr. Henzey, Mrs. Wong Nays: Mr. Woollett Motion carried. Similarly at a meeting of the Strongsville Board of Education on August 31,1972, the following action was recorded in the minutes: Mrs. Wong moved, seconded by Dr. Cain, that the textbook Catch 22 be removed from the Library in the Strongsville Schools. Roll call: Ayes: Mr. Ramsey, Mrs. Wong, Dr. Cain Nays: Mr. Woollett Motion carried. In his opinion the District Judge held that “the novels Catch 22 by Joseph Heller, God Bless You, Mr." } ]

[ { "docid": "22324667", "title": "", "text": "that was not available to him at the time of his original hearing. On October 30, 2002, the Board affirmed without opinion the decision of the IJ. In the same decision, the Board also denied, again without opinion, the motion to remand. Pilica seeks review of the Board’s decision. II. ANALYSIS A. Motion to Remand 2. Jurisdiction As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the following provision was enacted: “Notwithstanding any other provision of law, no court shall have jurisdiction to review-® any judgment regarding the granting of relief under section ... 1255 of this title .... ” 8 U.S.C. § 1252(a)(2)(B), INA § 242(a)(2)(B). Section 1255, in turn, is entitled, “Adjustment of status of nonimmigrant to that of person admitted for permanent residence,” and states that adjustment of status may be granted in the discretion of the Attorney General. 8 U.S.C. § 1255, INA § 245. Based upon the language of § 1252(a)(2)(B), it is clear that this Court lacks jurisdiction over the Attorney General’s discretionary determination of whether an alien should be granted adjustment of status. Here, however, Petitioner does not appeal from a discretionary determination denying him an adjustment in status. Rather, he appeals from the BIA’s denial of his motion in which he sought a remand in order to permit him to apply for an adjustment of status. The question is whether the denial of the motion to remand was a judgment “regarding the granting of relief’ under § 1255. 8 U.S.C. § 1252(a)(2)(B). The Sixth Circuit has not addressed this precise issue; however, two cases from other Circuits are instructive. In Prado v. Reno, 198 F.3d 286 (1st Cir.1999), the First Circuit held that INA § 242(a)(2)(B) did not preclude review of the petitioner’s claim that the BIA erred in failing to reopen her case. The petitioner had sought a reopening so that she could request an adjustment of status under INA § 245-the same relief as ultimately was desired by Pilica. Prado at 288. While finding plausible the INS’s reading of the statute as precluding review of" } ]

[ { "docid": "22916466", "title": "", "text": "failed to demonstrate a continuous physical presence ... is a non-diseretionary factual determination and properly subject to appellate review.”); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217 (5th Cir.2003) (holding that “whether an alien satisfies the continuous presence requirement [of 8 U.S.C. § 1229b] is a nondiscretionary determination because it involves straightforward statutory interpretation and application of law to fact” and is therefore reviewable); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir.2002) (holding that IJ’s determination of whether alien’s daughter qualifies as a “child” for the purposes of § 1229b was not a “judgment” within meaning of statute because it did not involve exercise of discretion); Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir.2001) (holding that a determination regarding whether an alien met the “continual physical presence” requirement of § 1229b was nondiscretionary and thus reviewable). Other circuits have also found that the same analysis applies to decisions regarding eligibility for relief under 8 U.S.C. § 1255. See, e.g., Succar v. Ashcroft, 394 F.3d 8, 19-20 (1st Cir.2005) (holding that a determination that “precluded] an alien from even applying for relief under section 1255” is a “purely legal question” that is reviewable); Pilica v. Ashcroft, 388 F.3d 941, 948 (6th Cir.2004) (holding that an order denying a petitioner’s motion to reopen proceedings so that he could apply for adjustment of status was not a judgment regarding the granting of relief and was thus reviewable); Hernandez v. Ashcroft, 345 F.3d 824, 845-47 (9th Cir.2003) (finding that a nondiscretionary determination regarding eligibility for adjustment of status was reviewable); Iddir v. INS, 301 F.3d 492, 497-98 (7th Cir.2002) (holding that a legal determination regarding an alien’s eligibility for adjustment of status was not barred by the statute). Here, in his July 1999 oral decision, the IJ made clear that he was denying Sepulveda cancellation of removal relief because Sepulveda was “unable to establish good moral character as a matter of law.” The IJ contrasted his finding of statutory ineligibility for cancellation of removal under 8 U.S.C. § 1229b, with his discretionary finding that Sepulveda lacked the good moral character required for voluntary" }, { "docid": "14963363", "title": "", "text": "that you are subject to removal from the United States pursuant to the following provision(s) of law: Section 237(a)(l)(C)(i) of the [] Immigration and Nationality Act (Act), as amended, in that after admission as a nonimmigrant under section 101(a)(15) of the Act, you failed to maintain or comply with the conditions of the nonimmigrant status under which you were admitted. . Okeke and his wife, who together have six children, all of whom are United States citizens, self-reported to the INS to pursue their cancellation of removal claims. The INS issued the NTAs in response thereto. Mrs. Ok-eke ([ AXX-XXX-XXX ]) received approval for her cancellation of removal claim (which was separated from her husband’s claim at the July 27, 1999 hearing) on December 12, 2002, because she demonstrated the \"exceptional and extremely unusual hardship” required by the statute. . The IJ based this finding on Okeke’s admissions during the hearing and a National Criminal Information Center (\"NCIC”) print-out provided by the government. . Because this appeal concerns the BIA's interpretation of the \"stop-time” provision, 8 U.S.C. §§ 1229b(b)(l)(A), 1229b(d)(l), a purely legal determination, the prohibition against appellate review of discretionary determinations is not applicable. See 8 U.S.C. § 1252(a)(2)(B) (\"no court shall have jurisdiction to review ... any other decision or action of the Attorney General the authority for which is specified under this subchapter [8 U.S.C. §§ 1151-1378] to be in the discretion of the Attorney General”) (emphasis added); Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir.2001) (holding that \"continuous physical presence” element is not a discretionary factor); see also Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.2003) (concluding \"that, for nondiscretionary factors, the Court maintains jurisdiction, but as to discretionary decisions we lack jurisdiction”). . 8 U.S.C. § 1229b(b)(l) provides that the Attorney General may cancel removal of an inadmissible or deportable alien if the alien meets four threshold requirements: The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien— (A)has" }, { "docid": "22920596", "title": "", "text": "one-paragraph opinion. He filed a timely petition for review of the BIA’s decision. DISCUSSION The main issue on appeal is whether section 1542 is a CIMT under section 1182(a)(2)(A)(i)(I). We hold that it is, and that, therefore, the IJ correctly denied Rodriguez’s application for cancellation of removal under section 1229b(b). We further hold that the IJ properly held that Rodriguez was inadmissible under section 1182(a) because he had “falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter ... or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). As a result, Rodriguez is statutorily ineligible for adjustment of status. See 8 U.S.C. § 1255(a) (requiring admissibility as a perquisite for adjustment of status). I. Jurisdiction Where, as here, the BIA adopts the IJ’s findings and reasoning, we review the decision of the IJ as if it were that of the BIA. Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), provides in relevant part that “no court shall have jurisdiction to review any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b [cancellation of removal], 1229c, or 1255 [adjustment of status] of this title.” 8 U.S.C. § 1252(a)(2)(B)®. Although we have no jurisdiction to review the IJ’s discretionary determinations concerning either cancellation of removal or adjustment of status, see 8 U.S.C. § 1252(a)(2)(B)®, we retain jurisdiction to review nondiscretionary decisions regarding either form of relief, see Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005). Obtaining either adjustment of status or cancellation of removal is a two-step process. First, an alien must prove eligibility by showing that he meets the statutory eligibility requirements. See Mariuta v. Gonzales, 411 F.3d 361, 365 (2d Cir.2005); Drax v. Reno, 338 F.3d 98, 113 (2d Cir.2003). Second, assuming an alien satisfies the statutory requirements, the Attorney General in his discretion decides whether to grant or deny relief. See Mariuta, 411 F.3d at 365; Drax, 338 F.3d at 113. Because these" }, { "docid": "6097711", "title": "", "text": "petitions when the decision is based on a question of law. Although the D.C. Circuit has yet to decide the question, other federal courts of appeal have held that § 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions regarding visa petitions and adjustment of status petitions. See e.g., Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005) (§ 1252(a)(2)(B) does not bar jurisdiction over nondiscretionary legal decisions); see also, e.g., Succar v. Ashcroft, 394 F.3d 8, 19 (1st Cir.2005) (“Both the Supreme Court and this court have consistently rejected arguments that Congress has eliminated judicial review of the legal question of interpretation of the statute as to whether an alien is eligible for consideration of relief.”); Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002) (“we find section 1252(a)(2)(B)(i) ... only bars review of actual discretionary decisions to grant or deny relief’). Federal courts have jurisdiction to review a “predicate legal question that amounts to a nondiscretionary determination underlying the denial of relief.” El-Baz Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir.2009). Thus, the jurisdiction-stripping statute does not deprive the Court of jurisdiction to review USCIS’s decision because the visa denial was based on USCIS’s predicate legal conclusion that the new regulation barred IQ Systems from substituting a beneficiary. Final agency action such as USCIS’s decision is subject to judicial review under the APA when there is no other adequate remedy and federal question jurisdiction under 28 U.S.C. § 1331 applies. See Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). B. USCIS’s Denial of the 1-140 Visa Petition The APA provides a cause of action to a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. Review under the APA is limited to “final agency action” for which there is no other adequate remedy in a court. Id. § 704; Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (a person adversely affected by final agency action is entitled to judicial review so long" }, { "docid": "22337308", "title": "", "text": "v. Davis, 533 U.S. 678, 700, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Regarding jurisdiction pursuant to § 1252(a)(2)(B), the Attorney General notes that several circuits have adopted the position urged here. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002), also involving a cancellation ap plication, held: the jurisdiction-stripping provision “eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion”; and the court retained jurisdiction over the “purely legal and non-discretionary question” in that case. Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002), concerning the application of § 1252(a)(2)(B) for discretionary relief other than cancellation, held: § 1252(a)(2)(B) “only bars review of actual discretionary decisions to grant or deny relief under the enumerated sections”, including cancellation. Gonzalez-Oropeza v. U.S. Attorney General, 321 F.3d 1331, 1332-33 (11th Cir.2003), resolved a question of jurisdiction under § 1252(a)(2)(B) by looking to that circuit’s rulings that a previous statute “precludes appellate review of discretionary decisions, but does not preclude review of non-discretionary legal decisions that pertain to statutory eligibility for discretionary relief1’ and applied that distinction in the context of § 1252(a)(2)(B). Most recently, Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.2003), reviewed Montero-Martinez and Iddir and held: “We join the other circuits and conclude that, for nondiscretionary factors, the Court maintains jurisdiction, but as to discretionary decisions we lack jurisdiction”. Our circuit has considered limitations on our jurisdiction in the immigration context similar to that in § 1252(a)(2)(B). Moosa v. INS, 171 F.3d 994 (5th Cir.1999), which concerned an interim jurisdictional statute, held: the jurisdictional bar precluded review of the denial of suspension of deportation (a discretionary form of relief which was a predecessor to cancellation) when the denial was explicitly exercised in the IJ’s discretion and would have been denied even if the alien had met all the statutory requirements for relief, id. at 1011; and the determination that an alien was ineligible for suspension of deportation because he failed to meet the statutory hardship requirement was made in the IJ’s discretion, thereby precluding our review, id. at 1012. And, Gonzalez-Torres v. INS, 213 F.3d" }, { "docid": "22920597", "title": "", "text": "Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), provides in relevant part that “no court shall have jurisdiction to review any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b [cancellation of removal], 1229c, or 1255 [adjustment of status] of this title.” 8 U.S.C. § 1252(a)(2)(B)®. Although we have no jurisdiction to review the IJ’s discretionary determinations concerning either cancellation of removal or adjustment of status, see 8 U.S.C. § 1252(a)(2)(B)®, we retain jurisdiction to review nondiscretionary decisions regarding either form of relief, see Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005). Obtaining either adjustment of status or cancellation of removal is a two-step process. First, an alien must prove eligibility by showing that he meets the statutory eligibility requirements. See Mariuta v. Gonzales, 411 F.3d 361, 365 (2d Cir.2005); Drax v. Reno, 338 F.3d 98, 113 (2d Cir.2003). Second, assuming an alien satisfies the statutory requirements, the Attorney General in his discretion decides whether to grant or deny relief. See Mariuta, 411 F.3d at 365; Drax, 338 F.3d at 113. Because these two stages are distinct, we have jurisdiction to review whether the BIA correctly determined that the alien was eligible for either cancellation of removal or adjustment of status, see Mariuta, 411 F.3d at 367 (noting that where the ground for denial of relief is either unclear or based on a nondiscretionary ground IIRIRA’s jurisdiction stripping provision does not apply). Although the Attorney General retains discretion, as the Supreme Court stated in INS v. St. Cyr, “[eligibility that [is] governed by specific statutory standard provide[s] a right to a ruling on an applicant’s eligibility even though the actual granting of relief [is] not a matter of right under any circumstances but rather is in all cases a matter of grace.” 533 U.S. 289, 307-08, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (internal quotation marks omitted) (holding that AEDPA and IIRIRA did not strip the district court of habeas jurisdiction to address a challenge to the Executive’s failure to exercise discretion authorized by law). Here, the IJ held that Rodriguez failed to meet the requirements of either" }, { "docid": "22916458", "title": "", "text": "SOTOMAYOR, Circuit Judge. Thé Government moves to dismiss Luis Sepulveda’s petitions for review of an August 2003 order of the Board of Immigration Appeals (“BIA”) denying a motion to reopen his removal proceedings and a December 2003 order of the BIA denying a motion to reconsider the August 2003 order. The BIA affirmed the decision of an immigration judge (“IJ”) that Sepulveda was not eligible for cancellation of removal under 8 U.S.C. § 1229b. The IJ had concluded that 8 U.S.C. § 1101(f) precluded Sepulveda from establishing that he was a person of good moral character while present in the United States. The BIA also determined that Sepulveda was ineligible for adjustment of status under 8 U.S.C. § 1255(i) because Sepulveda had filed his visa petition after April 30, 2001. We hold that 8 U.S.C. § 1252(a)(2)(B)® does not prohibit this Court from reviewing these orders because the determinations to deny Sepulveda eligibility for relief under §§ 1229b and 1255® were nondiscretion-ary. BACKGROUND Luis Sepulveda, a citizen of Colombia, was charged with removability under 8 U.S.C. § 1182(a)(6)(A)®, which provides that an alien “present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General” is inadmissible. Sepulve-da conceded removability, but applied for cancellation of removal under 8 U.S.C. § 1229b or, in the alternative, voluntary departure under 8 U.S.C. § 1229c. In July 1999, an IJ denied Sepulveda’s application for cancellation of removal and voluntary departure. Sepulveda conceded that he had spent more than 180 days in jail in the previous ten years as a result of criminal convictions. Consequently, the IJ found that because Sepulveda was “unable to establish” good moral character under 8 U.S.C. § 1101(f)(4), he was ineligible for cancellation of removal “as a matter of law.” The IJ also determined that Se-pulveda had not established the requisite good moral character to qualify for voluntary departure. The IJ stated that he was not denying that application on statutory ineligibility grounds, however, but rather “as a matter of discretion”" }, { "docid": "5424282", "title": "", "text": "U.S.C. § 1229b(b). We conclude that we have jurisdiction to consider Reyes-Vasquez’s contention that the IJ improperly found him ineligible for such relief. Although the decision to grant cancellation of removal is a discretionary act by the Attorney General that we may not review, 8 U.S.C. § 1252(a)(2)(B); Halabi v. Ashcroft, 316 F.3d 807, 808 (8th Cir.2003) (per curiam), we may consider the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for the relief. See Morales-Morales v. Ashcroft, 384 F.3d 418, 421-22 (7th Cir.2004); MirelesValdez v. Ashcroft, 349 F.3d 213, 216-17 (5th Cir.2003) (holding that the continuous presence requirement “is a nondiscretionary determination because it involves straightforward statutory interpretation and application of law to fact”). In doing so, we give substantial deference to the agency’s interpretation of immigration statutes. See Afolayan v. INS, 219 F.3d 784, 787 (8th Cir.2000). Here, the IJ did not exercise discretionary authority because he determined that Reyes-Vasquez was ineligible for the relief. The IJ concluded that Reyes-Vasquez met all the requirements except one: he had not “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(l)(A). As indicated above, the IJ stated that if Reyes-Vasquez had met the ten-year requirement, “the Court would grant this application for cancellation of removal.” An alien’s continuous period of physical presence in the United States may be cut off or broken in several ways. It stops accruing when an alien receives a notice to appear from the INS. 8 U.S.C. § 1229b(d)(l). It is broken if the petitioner has committed certain crimes or “has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” 8 U.S.C. § 1229b(d)(2). Our case law establishes that it is also broken “when an alien voluntarily departs under threat of deportation.” Palomino v. Ashcroft, 354 F.3d 942, 944 (8th Cir.2004) (finding reasonable the BIA’s interpretation in In re Romalez-Alcaide, 23" }, { "docid": "22817567", "title": "", "text": "to review the BIA’s legal, nondiscretionary determination that a petitioner lacks good moral character because he had spent more than 180 days in jail during the previous ten years) (emphasis added); cf. Mariuta v. Gonzales, 411 F.3d 361 (2d Cir.2005) (holding that we lack jurisdiction, under the “transitional rules” of the IIRI-RA, to review the BIA’s discretionary denial of a request for adjustment of status). Although the principle was strongly implied by our holding in Sepulveda, we now hold explicitly that the BIA’s discretionary determinations concerning whether to grant cancellation of removal constitute “judgment[s] regarding the granting of relief under section ... 1229b” within the meaning of 8 U.S.C. § 1252(a)(2)(B)® and therefore the review of such determinations falls outside our jurisdiction. In so holding, we join five sister circuits that have concluded that 8 U.S.C. § 1252(a)(2)(B)(i) deprives courts of the power to review discretionary determinations concerning cancellation of removal. See Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir.2005) (holding that 8 U.S.C. § 1252(a)(2)(B)(i) bars judicial review of discretionary decisions concerning cancellation of removal); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.2004) (same); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003) (same); Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002) (same); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1140-42 (9th Cir.2002) (same). We next turn to whether the BIA’s judgment that an alien has failed to demonstrate that his removal will cause a qualifying U.S. citizen relative to suffer “exceptional and extremely unusual hardship” is discretionary. Those circuits that have confronted this question have concluded unanimously that such hardship determinations are discretionary judgments and therefore, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), may not be reviewed. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“[W]e lack jurisdiction to review the subjective, discretionary determination that an alien failed to satisfy the ‘exceptional and extremely unusual hardship’ requirement for cancellation of removal[.]”); See Mendez-Moranchel, 338 F.3d at 179 (“The determination of wheth er the alien has established the requisite hardship [under 8 U.S.C. § 1229b(b)(l)(D) ] is a quintessential discretionary judgment.”); Rueda, 380 F.3d at 831" }, { "docid": "16258516", "title": "", "text": "a United States citizen. The IJ indicated that this conclusion made Petitioner ineligible for the statutory relief that she had requested. In any event, the IJ added that even if Petitioner were eligible for these forms of relief, he would deny her applications for them “as a matter of discretion.” R. at 123. Each of the provisions on which Petitioner relies only permits the Attorney General to grant relief; none requires that he do so. See 8 U.S.C. §§ 1229b(b)(l) (“The Attorney General may cancel removal .... ”), 1229b(b)(2) (“The Attorney General may cancel removal .... ”), 1255(a) (“The status of an alien ... may be adjusted by the Attorney General.... ”). On August 23, 2002, Petitioner appealed the IJ’s decision to the BIA. On January 15, 2004, the BIA affirmed without opinion. The IJ’s opinion thus became the final agency determination. See Yuk v. Ashcroft, 355 F.3d 1222, 1230 (10th Cir.2004) (“the summary affirmance regulations specifically provide that the IJ’s decision is the final agency action”). Petitioner timely petitioned for review in this court. II. STATUTORY LIMIT ON JURISDICTION We have jurisdiction over petitions for review of final orders of removal, see 8 U.S.C. § 1252(b)(2), but that jurisdiction is limited. In particular, § 1252(a)(2)(B)(i) deprives us of jurisdiction to review “any judgment regarding the granting of relief under” several sections of the INA, including the ones under which Petitioner seeks relief— §§ 1229b and 1255. The Government assumes that this limitation applies only to judgments resting on discretionary grounds, and Petitioner unsurprisingly does not contest this interpretation. Although the matter is not without doubt, we need not resolve it in this appeal because even adopting the Government’s assumption, we lack jurisdiction. See Morales v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.2003) (noting that “this provision seems to foreclose judicial review completely,” but holding that in any event, the decision on appeal rested on discretionary grounds). The IJ held that even were Petitioner eligible for any of the relief she sought, he would deny relief (on the Attorney General’s behalf) as a discretionary matter. Because the final order of" }, { "docid": "22337307", "title": "", "text": "— is nondiscretionary. This is consistent with the IJ’s stating that Mi-reles-Valdez’ “application for cancellation of removal is denied as a matter of law and not in the exercise of discretion”. (Emphasis added.) 1. Because Congress has delegated to the Attorney General significant responsibility over immigration matters, his construction of immigration statutes is entitled to considerable deference. See 8 U.S.C. § 1103(a)(1) (Attorney General “shall be charged with the administration and enforcement of this chapter [8 U.S.C. §§ 1101-1537] and all other laws relating to the immigration and naturalization of aliens”; his “determination and ruling ... with respect to all questions of law shall be controlling”); Amanfi v. Ashcroft, 328 F.3d 719, 721 (3d Cir.2003) (Attorney General is “ultimate authority on interpretations” of the immigration statutes). This is consistent with our “takfing] appropriate account of the greater immigration-related expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation’s need to ‘speak with one voice’ in immigration matters”. Zadvydas v. Davis, 533 U.S. 678, 700, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Regarding jurisdiction pursuant to § 1252(a)(2)(B), the Attorney General notes that several circuits have adopted the position urged here. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002), also involving a cancellation ap plication, held: the jurisdiction-stripping provision “eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion”; and the court retained jurisdiction over the “purely legal and non-discretionary question” in that case. Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002), concerning the application of § 1252(a)(2)(B) for discretionary relief other than cancellation, held: § 1252(a)(2)(B) “only bars review of actual discretionary decisions to grant or deny relief under the enumerated sections”, including cancellation. Gonzalez-Oropeza v. U.S. Attorney General, 321 F.3d 1331, 1332-33 (11th Cir.2003), resolved a question of jurisdiction under § 1252(a)(2)(B) by looking to that circuit’s rulings that a previous statute “precludes appellate review of discretionary decisions, but does not preclude review of non-discretionary legal decisions that pertain to statutory eligibility for discretionary relief1’ and" }, { "docid": "14963364", "title": "", "text": "8 U.S.C. §§ 1229b(b)(l)(A), 1229b(d)(l), a purely legal determination, the prohibition against appellate review of discretionary determinations is not applicable. See 8 U.S.C. § 1252(a)(2)(B) (\"no court shall have jurisdiction to review ... any other decision or action of the Attorney General the authority for which is specified under this subchapter [8 U.S.C. §§ 1151-1378] to be in the discretion of the Attorney General”) (emphasis added); Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir.2001) (holding that \"continuous physical presence” element is not a discretionary factor); see also Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.2003) (concluding \"that, for nondiscretionary factors, the Court maintains jurisdiction, but as to discretionary decisions we lack jurisdiction”). . 8 U.S.C. § 1229b(b)(l) provides that the Attorney General may cancel removal of an inadmissible or deportable alien if the alien meets four threshold requirements: The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien— (A)has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title (except in a case described in section 1227(a)(7) of this title where the Attorney General exercises discretion to grant a waiver); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. Id. .A threshold question here is whether the BIA correctly found that Okeke had committed a crime of inadmissibility, where the record evidence included an uncertified NCIC report and Okeke’s admission. Only upon a proper finding of the fact of a controlled substance offense does the analysis proceed to the next inquiry — whether the BIA properly interpreted the \"stop-time” provision of the cancellation of" }, { "docid": "4638836", "title": "", "text": "USCIS, is substituted for his predecessor, Michael Aytes. Defendants are collectively referred to as \"USCIS” in this Opinion. . The record does not indicate the precise date that Mr. George left Intuit, but apparently it was before July 16, 2008 when Intuit withdrew its 1-140 Petition. . USCIS argues that the Court lacks jurisdiction to review the decision to deny the 1-485 Application under the jurisdiction stripping provisions of the INA. See 8 U.S.C. § 1252(a)(2)(B)(ii). Federal courts of appeal have consistently held that § 1252(a)(2)(B) \"does not strip courts of jurisdiction to review nondiscretionary decisions regarding an alien's eligibility for\" adjustment of status under § 1255. Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005); see also, e.g., Succar v. Ashcroft, 394 F.3d 8, 19 (1st Cir.2005); Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002). Because USCIS denied Mr. George’s 1-485 Application because he was ineligible for adjustment of status, and not based on an exercise of discretion, this Court has jurisdiction. . Mr. George also alleges that USCIS changed its policy regarding portability without “due process” or appropriate note and comment rule-making. See Compl. ¶¶ 67-72; Pl.'s Opp’n [Dkt. # 12] at 12-14. But Mr. George fails to point to any change in policy, as he does not point to any prior USCIS rule or policy that is different from the one described here. . The Due Process Clause of the 5th Amendment applies to the federal government and imposes the same equal protection requirements as the Fourteenth Amendment imposes on the states. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954)." }, { "docid": "22337310", "title": "", "text": "899, 901 (5th Cir.2000), held we had jurisdiction to review an IJ’s determination that an alien lacked the seven years’ presence requirement for suspension of deportation because the “determination is not a matter of agency discretion, but involves application of the law to factual determinations”. Similarly, Omagah v. Ashcroft, 288 F.3d 254, 259 (5th Cir.2002), in the face of a transitional jurisdiction-stripping rule, held we could review a decision that an alien did not meet the good moral character requirement for suspension of deportation “because the statute classifies it as nondiscretionary”. In each instance, applying a similar jurisdiction-stripping bar, we considered whether the decision — that an alien failed to meet the statutory requirements for relief or that an alien would not receive relief even if the requirements were met — was an exercise of discretion. Finally, Congress is presumed to know the meaning courts have given its enactments. Concomitantly, it can amend § 1252(a)(2)(B) should it decide to change the way it is being applied by federal courts. In the light of the consistent interpretation given § 1252(a)(2)(B), we hold: its ban on review of “judgment[s] regarding the granting of relief1’ precludes review only of discretionary decisions. Therefore, we must next decide whether the one at issue is discretionary. 2. As noted, it was determined that Mi-reles-Valdez failed the presence requirement. Again, to be eligible, an alien must establish he “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date” of his cancellation application. 8 U.S.C. § 1229b(b)(l)(A). Once again, we give great weight to the Attorney General’s position that this determination is not discretionary. Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997), concerning the transitional immigration rules, held: “Either the petitioner has been continuously present in the United States ... or the petitioner has not”; and the court had jurisdiction to review decisions based solely on that issue. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir.2003), concerning the permanent rules at issue here and without discussing the basis for jurisdiction, the same court exercised" }, { "docid": "22920598", "title": "", "text": "two stages are distinct, we have jurisdiction to review whether the BIA correctly determined that the alien was eligible for either cancellation of removal or adjustment of status, see Mariuta, 411 F.3d at 367 (noting that where the ground for denial of relief is either unclear or based on a nondiscretionary ground IIRIRA’s jurisdiction stripping provision does not apply). Although the Attorney General retains discretion, as the Supreme Court stated in INS v. St. Cyr, “[eligibility that [is] governed by specific statutory standard provide[s] a right to a ruling on an applicant’s eligibility even though the actual granting of relief [is] not a matter of right under any circumstances but rather is in all cases a matter of grace.” 533 U.S. 289, 307-08, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (internal quotation marks omitted) (holding that AEDPA and IIRIRA did not strip the district court of habeas jurisdiction to address a challenge to the Executive’s failure to exercise discretion authorized by law). Here, the IJ held that Rodriguez failed to meet the requirements of either section 1229b(b)(l)(C) because he had been convicted of a CIMT or section 1255(a)(2) because he was inadmissible. These are nondiscretionary judgements regarding Rodriguez’s eligibility for discretionary relief, and, therefore, we have jurisdiction to review both. See Sepulveda, 407 F.3d at 62-63. II. Cancellation of Removal A nonpermanent resident in removal proceedings may be eligible for cancellation of removal if he or she: (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. 8 U.S.C. § 1229b(b) (emphasis added). Section 1182 includes “a crime involving moral turpitude ... or an attempt" }, { "docid": "22916464", "title": "", "text": "as a result of conviction, to a penal institution for an aggregate period of one hundred eighty days or more.” 8 U.S.C. § 1101(f)(7). The Attorney General may also decide that, “for other reasons,” the alien has failed to establish good moral character. 8 U.S.C. § 1101(f). Section 1255(i)(l)(B)(i) permits aliens who are beneficiaries (or spouses or children of beneficiaries) of approved immigrant visa petitions that were filed before April 30, 2001, to apply for adjustment of status to that of a lawfully admitted alien. The Government contends that under § 1252(a)(2)(B), we may not review any order granting or denying §§ 1229b and 1255 relief, regardless of whether relief was denied as a matter of discretion or because a nondiscretionary factor was found to preclude eligibility for relief. We disagree. Mindful of the “strong presumption in favor of judicial review of administrative action,” INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and the “ ‘longstanding principle of construing any lingering ambiguities in deportation statutes in favor- of the alien,’ ” id. at 320, 121 S.Ct. 2271 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)), we hold that 8 U.S.C. § 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions regarding an alien’s eligibility for the relief specified in 8 U.S.C. § 1252(a)(2)(B)®. Our decision here is consistent with the decisions of other circuits, which have held that § 1252(a)(2)(B) does not bar judicial review of nondiscretionary, or purely legal, decisions regarding an alien’s eligibility for § 1229b relief. See, e.g., Reyes-Vasquez v. Ashcroft, 895 F.3d 903, 906 (8th Cir.2005) (“Although the decision to grant cancellation of removal is a discretionary act by the Attorney General that we may not review, ... we may consider the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for the relief.” (internal citations omitted)); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir.2005) (“The denial of relief based on the ground that the alien has" }, { "docid": "22337305", "title": "", "text": "Appear. In those proceedings, Mireles-Valdez admitted he was present illegally in the United States and therefore subject to removal. He applied, inter alia, for cancellation of removal (cancellation), pursuant to 8 U.S.C. § 1229b. To be eligible, an alien must satisfy four statutory requirements. See 8 U.S.C. § 1229b(b). One requirement is ten years’ continuous physical presence in the United States (presence requirement). 8 U.S.C. § 1229b(b)(l)(A). Even if the alien can establish such eligi bility, the Attorney General retains discretion to deny cancellation. See 8 U.S.C. § 1229b(b)(l) (Attorney General “may” cancel removal); Sad v. INS, 246 F.3d 811, 819 (6th Cir.2001) (“Even if an alien satisfies the conditions to qualify for relief, the Attorney General retains discretion to grant or deny the application.”). Concerning cancellation, the immigration judge (IJ) ruled that Mireles-Valdez did not satisfy the presence requirement because his accepting voluntary departure in 1998 interrupted his continuous presence; therefore, cancellation was denied. Mireles-Valdez was ordered removed. Mireles-Valdez appealed the IJ’s decision to the Board of Immigration Appeals (BIA). It affirmed in April 2002, without opinion. II. The BIA’s factual findings are reviewed for substantial evidence, e.g., Lopez De Jesus v. INS, 312 F.3d 155, 158-59 (5th Cir.2002); rulings of law, de novo, deferring to the BIA’s interpretation of the immigration statutes, id. at 158. When, as in this instance, the BIA affirms without opinion, we review the IJ’s decision. See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.2003). A. Pursuant to 8 U.S.C. § 1252(a)(2)(B), “no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229b [cancellation]”. The extent of this jurisdiction-bar is determined, in part, by the meaning given the phrase “judgment regarding the granting of relief1’. Both Mireles-Valdez and the Attorney General urge “judgment” being read to refer to discretionary determinations by the Attorney General and his designees. In other words, this would permit judicial review of nondiscretionary determinations. The parties further contend that the decision at issue — Mireles-Valdez was not statutorily eligible for cancellation of removal because he did not satisfy the presence requirement" }, { "docid": "6097710", "title": "", "text": "content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. III. ANALYSIS A. Jurisdiction. Defendants argue that this Court lacks jurisdiction to review USCIS’s decision to deny the visa petition under the jurisdiction-stripping statute, 8 U.S.C. § 1252(a)(2)(B), which provides: [N]o court shall have jurisdiction to review — ... (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.... 8 U.S.C. § 1252(a)(2)(B)(ii). In other words, courts lack jurisdiction to review decisions regarding visa petitions when the decision was discretionary. Even so, courts have jurisdiction to review decisions on visa petitions when the decision is based on a question of law. Although the D.C. Circuit has yet to decide the question, other federal courts of appeal have held that § 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions regarding visa petitions and adjustment of status petitions. See e.g., Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005) (§ 1252(a)(2)(B) does not bar jurisdiction over nondiscretionary legal decisions); see also, e.g., Succar v. Ashcroft, 394 F.3d 8, 19 (1st Cir.2005) (“Both the Supreme Court and this court have consistently rejected arguments that Congress has eliminated judicial review of the legal question of interpretation of the statute as to whether an alien is eligible for consideration of relief.”); Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002) (“we find section 1252(a)(2)(B)(i) ... only bars review of actual discretionary decisions to grant or deny relief’). Federal courts have jurisdiction to review a “predicate legal question that amounts to a nondiscretionary determination underlying the denial of relief.” El-Baz Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th" }, { "docid": "22916465", "title": "", "text": "the alien,’ ” id. at 320, 121 S.Ct. 2271 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)), we hold that 8 U.S.C. § 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions regarding an alien’s eligibility for the relief specified in 8 U.S.C. § 1252(a)(2)(B)®. Our decision here is consistent with the decisions of other circuits, which have held that § 1252(a)(2)(B) does not bar judicial review of nondiscretionary, or purely legal, decisions regarding an alien’s eligibility for § 1229b relief. See, e.g., Reyes-Vasquez v. Ashcroft, 895 F.3d 903, 906 (8th Cir.2005) (“Although the decision to grant cancellation of removal is a discretionary act by the Attorney General that we may not review, ... we may consider the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for the relief.” (internal citations omitted)); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir.2005) (“The denial of relief based on the ground that the alien has failed to demonstrate a continuous physical presence ... is a non-diseretionary factual determination and properly subject to appellate review.”); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217 (5th Cir.2003) (holding that “whether an alien satisfies the continuous presence requirement [of 8 U.S.C. § 1229b] is a nondiscretionary determination because it involves straightforward statutory interpretation and application of law to fact” and is therefore reviewable); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir.2002) (holding that IJ’s determination of whether alien’s daughter qualifies as a “child” for the purposes of § 1229b was not a “judgment” within meaning of statute because it did not involve exercise of discretion); Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir.2001) (holding that a determination regarding whether an alien met the “continual physical presence” requirement of § 1229b was nondiscretionary and thus reviewable). Other circuits have also found that the same analysis applies to decisions regarding eligibility for relief under 8 U.S.C. § 1255. See, e.g., Succar v. Ashcroft, 394 F.3d 8, 19-20 (1st Cir.2005) (holding that a determination that “precluded]" }, { "docid": "22916467", "title": "", "text": "an alien from even applying for relief under section 1255” is a “purely legal question” that is reviewable); Pilica v. Ashcroft, 388 F.3d 941, 948 (6th Cir.2004) (holding that an order denying a petitioner’s motion to reopen proceedings so that he could apply for adjustment of status was not a judgment regarding the granting of relief and was thus reviewable); Hernandez v. Ashcroft, 345 F.3d 824, 845-47 (9th Cir.2003) (finding that a nondiscretionary determination regarding eligibility for adjustment of status was reviewable); Iddir v. INS, 301 F.3d 492, 497-98 (7th Cir.2002) (holding that a legal determination regarding an alien’s eligibility for adjustment of status was not barred by the statute). Here, in his July 1999 oral decision, the IJ made clear that he was denying Sepulveda cancellation of removal relief because Sepulveda was “unable to establish good moral character as a matter of law.” The IJ contrasted his finding of statutory ineligibility for cancellation of removal under 8 U.S.C. § 1229b, with his discretionary finding that Sepulveda lacked the good moral character required for voluntary departure relief under' 8 U.S.C. § 1229c. Thus, the IJ’s decision to deny cancellation of removal was based on a nondiscretionary ground. On appeal, the BIA recognized the nondiscretionary nature of this decision by affirming the IJ’s determination that Sepulveda was “bar[red] from eligibility for cancellation of removal.” Likewise, the BIA determination to deny Sepulveda adjustment of status relief under § 1255(i) was nondiscre-tionary because it was premised on the ground of statutory ineligibility. In holding that Sepulveda was “ineligible to adjust status,” the BIA cited 8 C.F.R. § 245.10(a)(2)© (2002), which defines a “properly filed” visa petition requesting adjustment of status for an alien like Se-pulveda as one filed before April 30, 2001. Furthermore, the BIA’s December 2003 finding that it lacked sua sponte authority to extend the filing deadline under the statute also illustrates the nondiscretion-ary nature of the eligibility determination. For the reasons discussed, we have jurisdiction to review these determinations of law. As a final matter, the fact that Sepulveda seeks review of orders denying a motion to reopen and a" } ]

[ { "docid": "17371635", "title": "", "text": "seen Patterson as a bar to a variety of postformation conduct. In Carroll, 891 F.2d at 1174, we held that Patterson precluded recovery for discriminatory treatment and constructive discharge under § 1981. Similarly, in Lavender, 897 F.2d at 805, we held that Patterson barred a discriminatory discharge claim under § 1981. We most recently applied Patterson ’s bar to a retaliatory discharge claim in Carter, 912 F.2d at 839-40. See also Gonzalez v. Home Ins. Co., 909 F.2d 716 (2d Cir.1990); McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir.1990); and Courtney v. Canyon Television and Appliance Rental, 899 F.2d 845 (9th Cir.1990). But see Hicks v. General Motors Corp., 908 F.2d 104 (8th Cir.1990); and Kriegel v. Home Ins. Co., 739 F.Supp. 1538 (N.D.Ga.1990). Unlike constructive and discriminatory discharges, retaliatory discharge may implicate the right to enforce contracts. Retaliation or threats of retaliation calculated to deter the legal enforcement of contractual rights falls within the express ambit of § 1981. Patterson, 109 S.Ct. at 2373. The rub is that Chambers’ claim is that Bell retaliated for her asserting rights under Title VII. We reaffirm our recent decision in Carter, guided by the Supreme Court’s statement that “the right to enforce contracts does not ... extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal processes his or her established contract rights.” Patterson, 109 S.Ct. at 2373 (emphasis added). See McKnight v. General Motors Corp., 908 F.2d 104, 111-12 (7th Cir.1990); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535 (11th Cir.1990); and Overby v. Chevron USA Inc., 884 F.2d 470 (9th Cir.1989). But see Jordan v. U.S. West Direct Company, 716 F.Supp. 1366 (D.Colo.1989). Title VII provides an express remedy for employer conduct in retaliation for pursuing rights created by Title VII. See 42 U.S.C. § 2000e-3(a). Because we find that Patterson bars Chambers’ § 1981 claim, we do not review the sufficiency of the evidence. The judgment is REVERSED." } ]

[ { "docid": "1732004", "title": "", "text": "909 F.2d 716, 723 (2d Cir.1990); Adames v. Mitsubishi Bank, Ltd., 1990 WL 182435, 1990 U.S. Dist. LEXIS 15784, at 23-27 (E.D.N.Y.1990); Fernandez v. Kogan, 738 F.Supp. 795, 798 (S.D.N.Y.1990). A. Discriminatory Job Evaluations and Termination Even if all facts adduced are viewed in the light most favorable to plaintiff, Patterson plainly mandates dismissal of so much of his § 1981 action as complains of discriminatory job evaluations during his employment with Equitable. Such conduct post-dates the formation of any employment contract and relates to the conditions under which plaintiff worked. As such, it is ■ appropriately addressed by Title VII. Similarly, the court must dismiss plaintiff’s § 1981 claim of discriminatory discharge. As the Second Circuit has only recently observed, “[discharge from employment involves neither the making nor the enforcement of a contract, but rather conduct subsequent to the formation of the contract. [Thus,] an allegedly discriminatory termination of a contract is not actionable under section 1981.” Patterson v. Intercoast Management of Hartford, Inc., 918 F.2d 12, 14 (2d Cir.1990). Accord Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807-08 (5th Cir.1990); contra Hicks v. Brown Group, Inc., 902 F.2d 630, 638-42 (8th Cir.1990). B. Retaliatory Discharge Numerous courts have also held that retaliatory discharge claims can no longer be heard pursuant to § 1981 in light of Patterson, unless the discharge is alleged to have actually obstructed plaintiffs access to the courts or some other process for the resolution of contract disputes. See, e.g., Carter v. South Central Bell, 912 F.2d 832, 839-40 (5th Cir.1990); Overby v. Chevron USA, Inc., 884 F.2d 470, 473 (9th Cir.1989); Fernandez v. Kogan, 738 F.Supp. at 798 (“cases in this District overwhelmingly support the proposition that retaliatory discharge is no longer actionable under Section 1981”). In this case, plaintiff has not alleged that his discharge impaired his ability to enforce contractual rights either through this court or otherwise. Indeed, the evidence suggests that Dash has vigorously pursued all avenues of redress. Accordingly, the court must dismiss that portion of his § 1981 claim alleging retaliatory discharge. C. Denial" }, { "docid": "8377183", "title": "", "text": "established contract rights,” is actionable under the “right to enforce contracts” language of the statute. Id. “Racial harassment in the course of employment,” while actionable under Title VII, is not actionable under section 1981. Id. at 2373-74. After Patterson was decided, Goodyear moved to dismiss this appeal on the basis that none of plaintiff’s claims was still actionable in light of Patterson. Plaintiff responded by arguing that Patterson should not be applied retroactively, and that even if it were, his claims for retaliatory and discriminatory discharge should survive. Those circuits that have considered appeals that were pending when Patterson was decided have applied Patterson retroactively. See, e.g., Gonzalez v. Home Ins. Co., 909 F.2d 716, 723 (2d Cir.1990); Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807 (5th Cir.1990); McKnight v. General Motors Corp., 908 F.2d 104, 110-11 (7th Cir.1990); Hicks v. Brown Group, Inc., 902 F.2d 630, 634-35 (8th Cir.1990), petition for cert. filed, (Aug. 17, 1990); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 849 (9th Cir.1990); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1534-35 (11th Cir.1990), petition for cert. filed, (July 30, 1990); Matthews v. Freedman, 882 F.2d 83, 84 (3d Cir.1989); Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir.1989); Risinger v. Ohio Bureau of Workers’ Compensation, 883 F.2d 475, 479 (6th Cir.1989). Furthermore, the Supreme Court retroactively applied its limitation of the scope of section 1981 to the plaintiff in Patterson, 109 S.Ct. at 2377, 2379, and on at least one occasion, has directed a circuit court to consider the effect of Patterson on a plaintiffs section 1981 claims on remand. Lytle v. Household Mfg., Inc., — U.S. -, 110 S.Ct. 1331, 1336 n. 3, 108 L.Ed.2d 504 (1990). We see no reason to divide the circuits on this issue and, therefore, we hold that Patterson should be applied retroactively. We turn then to the first two issues on appeal. After Patterson, “racial harassment relating to conditions of employment is not actionable under § 1981 because that provision does not apply to conduct which" }, { "docid": "1529269", "title": "", "text": "retaliation for attempting to enforce contract rights. SILER, Circuit Judge, concurring in part and dissenting in part. I concur with the majority opinion in full, except that which is listed in part III. It is my opinion that Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), does not permit a claim for retaliation pursuant to 42 U.S.C. § 1981 under the facts of this case. It may be that Patterson precludes any retaliatory claims under § 1981, but this court need not go that far. First, I have much more of a problem than the majority in determining whether the plaintiffs ever alleged retaliatory discharge in either their first or amended complaints. However, for purposes of this analysis, I will assume that they did. The majority relies upon the decisions in McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991); and Von Zuckerstein v. Argonne Nat’l Lab., 760 F.Supp. 1310 (N.D.Ill.1991). However, McKnight did not hold that § 1981 allows a claim for retaliation. Instead, it assumed that it was so actionable “provided that the retaliation had a racial motivation.” McKnight, 908 F.2d at 111. Then, the court went on to find that the plaintiff in that case “might be guilty of violating section 1981.” Id. at 112 (emphasis added). It further stated that the question need not be pursued, “because General Motors did not interfere with contractual entitlements.” Id. Moreover, the court in Von Zuckerstein held at 1319 that the plaintiffs in that case would have to establish “that they sought to use the internal grievance procedure to vindicate their contractual right to be free from discrimination.” That is unlike the present case, which apparently does not have an antidiscrimination provision in the collective bargaining agreement. Instead, I would follow the decision in Carter v. South Cent. Bell, 912 F.2d 832, 840 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991), which held that § 1981 no longer extends to retaliatory termination. Although that case" }, { "docid": "15911148", "title": "", "text": "employer with exempt employees differs significantly from the employer's relationship with non-exempt employees, with regard to, inter alia, methods of payment of salary and performance evaluations, we believe that plaintiff, for the purposes of this motion, has satisfied the standard of a “new and distinct relationship.” Accordingly, since we believe plaintiff has raised colorable triable issues on the claim of failure to promote, defendant’s motion for summary judgment on this ground is denied. The final component of plaintiffs section 1981 claim is his complaint of retaliatory discharge. Prior to Patterson, it was the law in this circuit, as well as others, that section 1981 provided a cause of action for retaliatory discharge. See Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38, 42-43 (2d Cir.1984). Since Patterson, it is questionable whether such a claim is cognizable under section 1981, for a few reasons, only one of which we need address here. It is clear that a claim of retaliatory discharge does not implicate the right to “make contracts” aspect of section 1981. Williams v. National R.R. Passenger Corp., 716 F.Supp. 49, 51 (D.D.C.1989). Accordingly, the only question remaining is whether retaliatory discharge impairs the right to “enforce contracts.” In Patterson, the Supreme Court opined that section 1981 “prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race ...” and that “[t]he right to enforce contracts does not ... extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights.” 109 S.Ct. at 2373. The Court, citing the dissent in Runyon v. McCrary, 427 U.S. 160, 195 n. 5, 96 S.Ct. 2586, 2606 n. 5, 49 L.Ed.2d 415 (1976), construed the purpose of section 1981 as “removing] the legal disabilities to sue, be a party, testify or enforce a contract.” Id. (emphasis in Runyon). Since Patterson, courts have specifically looked at whether a plaintiff, by way of the alleged retaliatory discharge, was somehow impeded from filing claims with the EEOC and/or with the court. See Overby" }, { "docid": "21564594", "title": "", "text": "after Patterson ); English v. General Dev. Corp., 717 F.Supp. 628, 632-33 (N.D.Ill.1989) (Patterson leaves retaliatory discharge action intact); Jordan v. U.S. West Direct Co., 716 F.Supp. 1366, 1368-69 (D.Colo.1989) (retaliation claims actionable after Patterson under right to enforce contract). But see Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1534-35 (11th Cir.1990); (retaliatory discharge no longer actionable under Section 1981 after Patterson); Overby v. Chevron USA, Inc., 884 F.2d 470, 472-73 (9th Cir.1989) (same); Alexander v. N.Y. Medical College, 721 F.Supp. 587, 588 (S.D.N.Y.1989) (same); Williams v. National R.R. Passenger Corp., 716 F.Supp. 49, 51-52 (D.D.C.1989) (retaliation not actionable under Section 1981 because right to enforce contracts unimpeded); Dangerfield v. Mission Press, 50 Fair Empl.Prac.Cas. (BNA) 1171, 1172 (N.D.Ill.1989) (same). Cf. Fowler v. McCrory Corp., 727 F.Supp. 228 (D.Md.1989) (white employee discharged after filing complaint with local agency claiming that employer directed him not to hire all blacks has a cause of action under Section 1981 for violation of his own right to “give evidence,” and has third-party standing to assert a violation of blacks’ Section 1981 right to make contracts). . Recognizing the extent and urgency of the crisis in which the Reconstruction civil rights statutes were promulgated, the Supreme Court has extended its policy of broad interpretation to other Reconstruction Era civil rights statutes as well. See Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 1796, 29 L.Ed.2d 338 (1971) (interpreting 42 U.S.C. § 1985(3) (1982)); Price, 383 U.S. at 801, 86 S.Ct. at 1160 (interpreting 18 U.S.C. § 241 (1988)). See also Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583 at 591-92 (7th Cir.1989) (noting broad construction rule, court interprets 42 U.S.C. § 1985(3) to cover civil conspiracies motivated by racial animus towards whites). . See also Malhotra, 885 F.2d at 1314 (7th Cir.1989) (Cudahy, J., concurring) (A prohibition against retaliation is a \"necessary adjunct” to Section 1981 because ”[i]f an employee may be fired for complaining of discrimination, his [or her] right not to be discriminated against is surely vitiated”). . We find the dissent noteworthy not for the issues it" }, { "docid": "17190276", "title": "", "text": "not protect the employee from any conduct by the employer after the contractual relationship has begun. Id. at 2373. The right to enforce contracts is the “right of access to legal process, that will address and resolve contract-law claims.” Id. The employer may not do anything to hinder the employee’s effort to enforce the employment contract through the legal process. Id. Patterson’s interpretation of section 1981 explicitly bars any of the appellants’ claims based solely on racial harassment. See id. For example, Allen’s SC rating did not impair his right to make or enforce his employment contract. But the holding in Patterson was limited to racial harassment. If Carter and Jackson were manipulated into volunteering for VAMAP, SCB’s actions resulted in their discharge. This could be labeled “constructive discharge” rather than simply “harassment.” Moreover, two of Allen’s claims, that SCB denied him a promotion and fired him in retaliation for taking legal action against them, also are not explicitly covered by Patterson. B. Constructive Discharge: Carter and Jackson The Supreme Court did not decide whether section 1981 prevents an employer from firing an individual because of her race. See Lytle v. Household Mfg., Inc., — U.S. -, 110 S.Ct. 1331, 1336 n. 3, 108 L.Ed.2d 504 (1990); Jett v. Dallas Indep. School Dist., — U.S. -, 109 S.Ct. 2702, 2709-10, 105 L.Ed.2d 598 (1989). After Patterson, we have held that it does not. See Walker v. South Cent. Bell Tel., 904 F.2d 275, 276-77 (5th Cir.1990); Lavender, 897 F.2d at 807-08; Carroll v. General Accident Ins. Co. of America, 891 F.2d 1174, 1177 (5th Cir.1990). Most Circuits have agreed with us. See Gonzalez v. Home Ins. Co., 909 F.2d 716 (2d Cir.1990); McKnight v. General Motors Corp., 908 F.2d 104, 109 (7th Cir.1990); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 849 (9th Cir.1990). But see Hicks v. Brown Group, Inc., 902 F.2d 630, 638-40 (8th Cir.1990). Two arguments support the conclusion that section 1981 no longer applies to discriminatory discharge. First, discriminatory termination impairs the employee’s right to perform the employment contract, not her right to" }, { "docid": "17190281", "title": "", "text": "Patterson. See Rathjen v. Litchfield, 878 F.2d 836, 842 (5th Cir.1989). We now hold that it does not. See, e.g., Brown v. United States, 890 F.2d 1329, 1336 & 1339 (5th Cir.1989) (overruling a prior Fifth Circuit opinion because a subsequent Supreme Court case was implicitly inconsistent with it). Three arguments support our holding that section 1981 no longer extends to retaliatory termination. First, Title VII will protect an employee from retaliation. See 42 U.S.C.A. § 2000e-3(a) (West 1981); Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1576 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990). As noted above, we should not interpret section 1981 to duplicate that protection unless the overlap of the two statutes is “necessary.” See Patterson, 109 S.Ct. at 2375. While an employer who retaliates against an employee may discourage that employee (or others) from using the legal process, the employer has not impaired or impeded the employee’s ability to enforce his employment contract. While these concepts have been construed to be synonymous, see Hicks, 902 F.2d at 638 n. 20; Malhorta, 885 F.2d at 1314 (Cudahy, J., concurring), we do not believe that it is “necessary” to do so, see Overby v. Chevron USA, Inc., 884 F.2d 470, 473 (9th Cir.1989). Second, when Allen filed his charge with the EEOC, he was asserting a right given to him by the Civil Rights statutes, not by his employment contract with SCB. See McKnight, 908 F.2d at 112; Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535 (11th Cir.1990). Therefore, Allen’s right to enforce his employment contract was not impaired. Compare Goodman, 482 U.S. at 659-60, 107 S.Ct. at 2620 (challenging union’s failure to assert instances of racial discrimination against employees, in violation of contractual collective bargaining agreement, under section 1981). Finally, we have already held that discriminatory discharge is no longer actionable under section 1981. Were we to hold that section 1981 still encompasses retaliatory discharge, we would be encouraging litigation to determine what the employer’s subjective motive was when he fired the employee: was it to retaliate" }, { "docid": "8152716", "title": "", "text": "under section 1981. Williams asserts that the alleged retaliation was in response to his efforts to enforce his contract rights by filing EEOC charges; therefore, his claim is actionable under section 1981's protection of the right to “make and enforce” a contract. We find no merit in this argument. In discussing section 1981’s “make and enforce” contracts provision, the Supreme Court in Patterson held: It [section 1981] also covers wholly private efforts to impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations_ The right to enforce contracts does not, however, extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights. Patterson, 109 S.Ct. at 2373. In this case, First Union’s alleged retaliatory conduct did not prevent Williams from filing or pursuing EEOC charges and in no way impeded or obstructed Williams’ access to legal process. The Ninth Circuit considered a nearly identical claim in Overby v. Chevron U.S.A., Inc., 884 F.2d 470 (9th Cir.1989), and held that Chevron’s alleged discharge of Overby in retaliation for filing EEOC charges did not “ ‘impede’ or ‘obstruct’ Overby’s right to enforce his contract in violation of § 1981.... ” Id. at 473. The Overby court also noted that the alleged retaliatory discharge in that case was expressly prohibited by section 704(a) of Title VII of the Civil Rights Act of 1964 and that Patterson had specifically “counseled against stretching the meaning of § 1981 to protect conduct already covered by Title VII.” Id. The Supreme Court in Patterson also cautioned against reading section 1981 so broadly that it “would undermine the detailed and well-crafted procedures for conciliation and resolution of Title VII claims.” Patterson, 109 S.Ct. at 2374. Section 1981 was not enacted to duplicate the protection offered by federal antidiscrimination legislation. It was aimed instead at protecting a much narrower scope of activity — the right to make and enforce contracts. In this case, Williams seeks to extend section 1981 beyond its appropriate scope. Accordingly, we find that the district court" }, { "docid": "8377182", "title": "", "text": "support the jury’s verdict for Goodyear on the discriminatory discharge claim. While this case was pending on appeal, the Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), in which it limited the scope of claims actionable under section 1981. The Court held that the statute’s protection of the right to make contracts “extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” Id. at 2372. Specifically, section 1981 “prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms.” Id. Furthermore, the statute’s protection of the right to enforce contracts “embraces protection of a legal process, and of a right of access to legal process, that will address and resolve contract-law claims without regard to race.” Id. at 2373. Only “conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights,” is actionable under the “right to enforce contracts” language of the statute. Id. “Racial harassment in the course of employment,” while actionable under Title VII, is not actionable under section 1981. Id. at 2373-74. After Patterson was decided, Goodyear moved to dismiss this appeal on the basis that none of plaintiff’s claims was still actionable in light of Patterson. Plaintiff responded by arguing that Patterson should not be applied retroactively, and that even if it were, his claims for retaliatory and discriminatory discharge should survive. Those circuits that have considered appeals that were pending when Patterson was decided have applied Patterson retroactively. See, e.g., Gonzalez v. Home Ins. Co., 909 F.2d 716, 723 (2d Cir.1990); Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807 (5th Cir.1990); McKnight v. General Motors Corp., 908 F.2d 104, 110-11 (7th Cir.1990); Hicks v. Brown Group, Inc., 902 F.2d 630, 634-35 (8th Cir.1990), petition for cert. filed, (Aug. 17, 1990); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 849 (9th" }, { "docid": "5769562", "title": "", "text": "enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Nevertheless, the City maintains that Adams’ charges of harassment and retaliation fall outside the new definition. The City ignores the 1991 amendments. In support of its motion, the City cites McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir.1990) and Buddingh v. South Chicago Cable, 830 F.Supp. 437 (N.D.Ill.1993) for the proposition that a plaintiff must allege interference with his abilities to form a contract in order to state a claim under section 1981. Both McKnight and Buddingh draw their interpretation of section 1981 from Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). See McKnight, 908 F.2d at 108; Buddingh, 830 F.Supp. at 441. In Patterson, the Supreme Court held that postformation harassment and retaliation did not involve the right to “make” contracts, but rather implicated the performance of established contract obligations and the conditions of continuing employment. Patterson, 491 U.S. at 177, 109 S.Ct. at 2372-73. As a result, harassment and retaliation for attempts to enforce anti-discrimination laws were not cognizable under section 1981. Patterson motivated Congress to amend section 1981. See H.R.Rep. No. 40(1), 102d Cong., 1st Sess. 89 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 627. The legislative history makes Congress’ intent clear: Section 210 would overrule Patterson by adding at the conclusion of section 1981 a new subsection (b).... The Committee intends this provision to bar all race discrimination in contractual relations. The list set forth in subsection (b) is intended to be illustrative rather than exhaustive. In the context of employment discrimination, for example, this would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring. H.R.Rep. No. 40(1), 102d Cong., 1st Sess. 92 (1991), reprinted in U.S.C.C.A.N. 549, 680. Moreover, Congress intended the new section 1981 to cover retaliation against an employee for filing an EEOC claim or enforcing any other antidiscrimination statute. See H.R.Rep. No. 40(1) at 92 n. 92, U.S.C.C.A.N. 1991, p. 630. The harassing and retaliatory conduct that Adams alleges occurred after" }, { "docid": "7322517", "title": "", "text": "facts incorrectly. Furthermore, the record must be viewed in a light most favorable to the party opposing the motion. Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir.1988). As the district court pointed out, the Supreme Court sharply limited the application of § 1981 to employment discrimination claims in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Interpreting the scope of § 1981 in the employment context, the Court found that: [T]he relevant provision in § 1981 protects two rights: ‘the same right ... to make ... contracts’ and ‘the same right ... to ... enforce contracts.’ ... But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Id. at 176-77, 109 S.Ct. at 2372-73. The right to enforce contracts was limited to prohibiting an employer from impairing an employee’s access to legal process to enforce an established contract right. Id. at 177-78, 109 S.Ct. at 2373. The present case implicates only the right to make, not the right to enforce contracts. Section 1981 is clearly inapplicable to White’s claim of discriminatory discharge. We recently joined a majority of the courts of appeals in holding that, based on Patterson, discriminatory discharge claims are not actionable under § 1981. Williams v. First Union Nat’l Bank of N.C., 920 F.2d 232 (4th Cir.1990). Therefore, the only other claim which could possibly involve the right to make a contract concerns White’s alleged denial of transfer from courier to dispatcher. In Patterson, the Court determined that a § 1981 action for discriminatory denial of a promotion exists only where “the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer.” 491 U.S. at 185, 109 S.Ct. at 2373. The district court thoroughly and, we find, correctly analyzed this issue. 729 F.Supp. at 1545-46. Therefore, we hold that the position" }, { "docid": "11393874", "title": "", "text": "849 (9th Cir.1990); Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807-8 (5th Cir.1990); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1534-5 (11th Cir.1990); Overby v. Chevron USA, Inc., 884 F.2d 470, 472-3 (9th Cir.1989) (containing thorough analysis of reasons why Patterson mandates that termination claims are not cognizable under 42 U.S.C. § 1981). But see Hicks v. Brown Group, Inc., 902 F.2d 630, 635-8 (8th Cir.1990) (extensive reasoning explaining why Patterson permits discharge claims under section 1981); Jackson v. City of Albuquerque, 890 F.2d 225, 236 n. 15 (10th Cir.1989) (court stated in footnote that Patterson did “not affect either the analysis or the outcome of this case.”) The logic of the weight of present case law that permits a section 1981 claim for racially motivated refusal to hire while denying a section 1981 claim for a racially motivated termination of employment is, to me, somewhat bizarre. It must be remembered that the decisions are based on interpretations of the statutory language that “[a]ll persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens_” 42 U.S.C. § 1981. Refusals to hire relate to the making of contracts of employment. Although racially motivated terminations of employment would appear to involve rights concerning the enforcement of contracts, under Patterson: [t]he right to enforce contracts does not, however, extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights. Patterson, 491 U.S. at 177-178, 109 S.Ct. at 2371-72. Despite the uncertainties, I shall follow the weight of authority in concluding that a cause of action for racially motivated termination of employment is not cognizable under 42 U.S.C. § 1981. Under the circumstances of this case, my holding will have little practical effect because plaintiff may still pursue her discriminatory discharge claims under Title VII. D. Pennsylvania Human Relations Act Count III of Butler’s complaint purports to set forth a cause of action under the Pennsylvania Human Relations Act (PHRA). In order to establish a prima facie" }, { "docid": "17190282", "title": "", "text": "see Hicks, 902 F.2d at 638 n. 20; Malhorta, 885 F.2d at 1314 (Cudahy, J., concurring), we do not believe that it is “necessary” to do so, see Overby v. Chevron USA, Inc., 884 F.2d 470, 473 (9th Cir.1989). Second, when Allen filed his charge with the EEOC, he was asserting a right given to him by the Civil Rights statutes, not by his employment contract with SCB. See McKnight, 908 F.2d at 112; Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535 (11th Cir.1990). Therefore, Allen’s right to enforce his employment contract was not impaired. Compare Goodman, 482 U.S. at 659-60, 107 S.Ct. at 2620 (challenging union’s failure to assert instances of racial discrimination against employees, in violation of contractual collective bargaining agreement, under section 1981). Finally, we have already held that discriminatory discharge is no longer actionable under section 1981. Were we to hold that section 1981 still encompasses retaliatory discharge, we would be encouraging litigation to determine what the employer’s subjective motive was when he fired the employee: was it to retaliate or “merely” to discriminate? This would be pointless. Both motives are equally invidious, and the employee suffers the same harm. Because section 1981 no longer covers retaliatory termination, all suits for discriminatory dismissal must be brought under Title VII. III. TITLE VII REMEDY Because we have decided to apply Patterson retroactively to bar their section 1981 claims, the appellants ask us to remand this case to the district court with instructions to consider their complaints under Title VII, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1981 & Supp.1990). For the reasons given below, we decline to substitute a Title VII remedy for Carter and Jackson, but we will reach the merits of Allen’s Title VII claims. A. Carter and Jackson Carter and Jackson never pled Title VII. Nevertheless, they claim that we have a duty to substitute Title VII for section 1981, their failed cause of action. They cite two cases for this proposition: Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980) and Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978)." }, { "docid": "7041900", "title": "", "text": "new contracts. For example, an employee who is discharged has obviously lost the chance to be promoted to a higher position. The discriminatory failure to promote might in and of itself be actionable under § 1981 if it is a “new and distinct relation,” Patterson, 491 U.S. at 185, 109 S.Ct. at 2377, but the fact that the employee didn’t have the opportu nity to be promoted does not make his termination actionable. Otherwise the prospective loss of an opportunity to contract could virtually always be invoked as a basis for applying § 1981 to post-formation conduct. Patterson makes clear that this hypothetical interference with contract formation fails to fall within the scope of § 1981. Fortunately for Daniels, he did not rely solely on a post-formation theory in arguing that his expulsion violated the statute. He has characterized his expulsion as racially discriminatory retaliation. If § 1981 post-Patterson provides a remedy for plaintiffs expulsion, it does so because the expulsion is in retaliation for Daniels’ efforts to bring Local 597 into compliance with the non-discrimination clause of the collective bargaining agreement. While we have recognized on at least four occasions that an action for retaliation under § 1981 potentially survives Patterson, Mozee v. American Commercial Marine Serv. Co., 940 F.2d 1036, 1051-52 (1991); Bailey v. Northern Indiana Pub. Serv. Co., 910 F.2d 406, 411 (7th Cir.1990); McKnight, 908 F.2d at 111-112; Malhotra v. Cotter & Co., 885 F.2d 1305, 1313 (1989), we have not yet actually held a defendant liable for retaliation. See also Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535 (11th Cir.1990) (recognizing that an employer’s retaliatory conduct is actionable under § 1981 “when the employer aims to prevent or discourage an employee from using legal process to enforce a specific contract right”). In Malhotra, we first suggested that retaliation might be actionable, where the retaliation was racially motivated and interfered with a plaintiff’s ability to make or enforce contracts on the same footing as white persons. 885 F.2d at 1313. However, we did not decide whether § 1981 covered the retaliation against plaintiff Malhotra, because" }, { "docid": "15911149", "title": "", "text": "National R.R. Passenger Corp., 716 F.Supp. 49, 51 (D.D.C.1989). Accordingly, the only question remaining is whether retaliatory discharge impairs the right to “enforce contracts.” In Patterson, the Supreme Court opined that section 1981 “prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race ...” and that “[t]he right to enforce contracts does not ... extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights.” 109 S.Ct. at 2373. The Court, citing the dissent in Runyon v. McCrary, 427 U.S. 160, 195 n. 5, 96 S.Ct. 2586, 2606 n. 5, 49 L.Ed.2d 415 (1976), construed the purpose of section 1981 as “removing] the legal disabilities to sue, be a party, testify or enforce a contract.” Id. (emphasis in Runyon). Since Patterson, courts have specifically looked at whether a plaintiff, by way of the alleged retaliatory discharge, was somehow impeded from filing claims with the EEOC and/or with the court. See Overby v. Chevron USA, Inc., 884 F.2d 470, 473 (9th Cir.1989); Alexander v. New York Medical College, 721 F.Supp. 587 (S.D.N.Y.1989); Williams v. National R.R. Passenger Corp., supra, 716 F.Supp. at 51-52; see also Matthews v. Northern Telecom, Inc., No. 88 Civ. 583, 1989 WL 131343 (S.D.N.Y. Nov. 1, 1989) (plaintiff who alleged that he had been terminated discriminatorily, sought redress under section 1981 for retaliatory discharge of plaintiff's key witness by the defendant; court held that while defendant may have placed “practical hindrances in plaintiff’s way ... it has not caused legal obstruction of plaintiff’s case”). To these courts, the mere fact of the retaliatory dismissal has not been found to constitute the legal barrier to enforcement of the employment contract required under section 1981. We agree with these courts, and respectfully disagree with those courts that have found otherwise. See Yates v. Western Electric Co., Inc., Civ. No. 88-2280, 1989 WL 152222 (D.Kan. Nov. 30, 1989); English v. General Dev. Corp., 717 F.Supp. 628, 630-34 (N.D.Ill.1989); Jordan v. U.S. West Direct Co., 716 F.Supp." }, { "docid": "14395175", "title": "", "text": "F.Supp. at 754; White v. Federal Express Corp., 729 F.Supp. 1536, 1544 (E.D.Va.) (providing that after Patterson, post-contract formation work place harassment and disparate treatment claims (including dis charge claims) that do not involve contract enforcement or promotion remain actionable under Title VII but not § 1981). Other courts have also entered recent orders that support this Court’s conclusions in Gregory and reject the holding of Hicks. See generally Shuman v. General Motors Corp., 914 F.2d 258 (6th Cir.1990); Gonzalez v. Homes Insurance Co., 909 F.2d 716 (2d Cir.1990); Reeves v. MCI Telecommunications Corp., 909 F.2d 144 (5th Cir.1990); McKnight v. General Motors Corp., 908 F.2d 104, 53 Fair Empl. Prac. Cas. (BNA) 505 (7th Cir.1990); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845 (9th Cir.1990); Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805 (5th Cir.1990). Because of the vast amount of case law finding discharge claims are not cognizable under § 1981, the Court believes that summary judgment is appropriate on Plaintiffs’ § 1981 claim involving an alleged discriminatory termination. 4.Retaliatory Discrimination. In causes of action 4, 6, 7,11,12,13, 14, 16, and 17, Plaintiffs allege that conduct committed by Defendant’s employees was in retaliation for Plaintiffs choosing to exercise their rights not to be victims of racial discrimination. It appears well settled that courts have treated retaliatory conduct as post-contract conduct that is not actionable under § 1981. See Gregory, 728 F.Supp. at 1259; see also Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535 (11th Cir.1990); Overby, 884 F.2d at 473; Rathjen v. Litchfield, 878 F.2d 836 (5th Cir.1989). Therefore, the Court will grant Defendant’s motion for summary judgment of the § 1981 claims alleging retaliatory discrimination. 5.Racial Harassment. In cause of action 16, Plaintiffs contend that Defendant’s employee Zimmerman cursed Cuthbertson, told Cuthbertson that he should leave, denied Cuthbertson training, delayed Cuthbertson’s review, denied Cuthbertson' a raise, and promoted a less qualified white employee over Cuth-bertson. Defendant asserts that such a claim amounts to racial harassment which is no longer an actionable § 1981 claim under Patterson. Plaintiff contends that" }, { "docid": "22946847", "title": "", "text": "as the offer to make a contract only on discriminatory terms.” Id. at 177, 109 S.Ct. 2363. Importantly, however, that right “extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” Id. at 176, 109 S.Ct. 2363. The second right, the right to enforce contracts, “does not ... extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights.” Id. at 177-78, 109 S.Ct. 2363. Thus, section 1981’s prohibition did not include so-called “postformation” discriminatory conduct of an employer, including the breach of the terms of the contract or imposition of discriminatory working conditions, such as racial harassment. Id. at 178-82. Patterson, however, was silent as to the issue of retaliation. Even though Patterson involved only racial harassment and the term “retaliation” appears nowhere in the opinion, several circuits — including this one — interpreted Patterson as precluding retaliation claims under section 1981 because such employer behaviors purportedly involved now-unprotected postformation conduct. See, e.g., Gonzalez v. Home Ins. Co., 909 F.2d 716 (2d Cir.1990); Carter v. South Cent. Bell, 912 F.2d 832, 888-41 (5th Cir.1990); McKnight v. Gen. Motors Corp., 908 F.2d 104, 107-10 (7th Cir.1990); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 849 (9th Cir.1990); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535 & n. 17 (11th Cir.1990); Gersman v. Group Health Ass’n, Inc., 931 F.2d 1565 (D.C.Cir.1991); see also Foley v. Univ. of Houston Sys., 355 F.3d 333, 339 (5th Cir.2003) (noting that Patterson “marked a dramatic change in § 1981 jurisprudence”); but see Hicks v. Brown, 902 F.2d 630, 635-38 (8th Cir.1990) (holding that Patterson did not address retaliation claims and should not be read as foreclosing such claims under section 1981). In the immediate aftermath of Patterson, we decided Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir.1989), in which we observed that “Patterson might be thought to foreclose any suggestion that retaliation could be actionable under” section 1981. Malhotra, 885 F.2d at 1312. Specifically, we noted" }, { "docid": "21564593", "title": "", "text": "be assumed to address and resolve in the case in which it first lays down a rule every controversy within the semantic reach of the rule. Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir.1989) (Malhotra) (implying but not deciding that retaliatory discharge claims continue to be actionable under Section 1981 after Patterson ). . While discharge impairs the right to make contracts, it does not ordinarily impair the right to enforce contracts as described in Patterson. See 109 S.Ct. at 2373. The discharged employee is free to simply go into court and file suit. However, when an employer retaliates against an employee by discharging her for attempting to enforce her Section 1981 rights, this very well may impair the employee’s ability to enforce her contract rights within the meaning of Section 1981 because it may intimidate her into refraining from resorting to the legal process to vindicate her Section 1981 rights. See Malhotra, 885 F.2d at 1314 n. 1 (Cudahy, J., concurring) (noting in dicta that retaliatory discharge continues to be actionable after Patterson ); English v. General Dev. Corp., 717 F.Supp. 628, 632-33 (N.D.Ill.1989) (Patterson leaves retaliatory discharge action intact); Jordan v. U.S. West Direct Co., 716 F.Supp. 1366, 1368-69 (D.Colo.1989) (retaliation claims actionable after Patterson under right to enforce contract). But see Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1534-35 (11th Cir.1990); (retaliatory discharge no longer actionable under Section 1981 after Patterson); Overby v. Chevron USA, Inc., 884 F.2d 470, 472-73 (9th Cir.1989) (same); Alexander v. N.Y. Medical College, 721 F.Supp. 587, 588 (S.D.N.Y.1989) (same); Williams v. National R.R. Passenger Corp., 716 F.Supp. 49, 51-52 (D.D.C.1989) (retaliation not actionable under Section 1981 because right to enforce contracts unimpeded); Dangerfield v. Mission Press, 50 Fair Empl.Prac.Cas. (BNA) 1171, 1172 (N.D.Ill.1989) (same). Cf. Fowler v. McCrory Corp., 727 F.Supp. 228 (D.Md.1989) (white employee discharged after filing complaint with local agency claiming that employer directed him not to hire all blacks has a cause of action under Section 1981 for violation of his own right to “give evidence,” and has third-party standing to assert a violation of" }, { "docid": "1529256", "title": "", "text": "would it produce “substantial inequitable results” that might otherwise be avoided and concluded that applying Patterson would not unduly prejudice the plaintiff. Prather, 918 F.2d at 1258. This decision was reaffirmed in Hull v. Cuyahoga Valley Bd. of Educ., supra. The district court correctly found that Patterson applied retroactively to the pending § 1981 claims of Rivers and Davison. Ill Appellants argue that, even if Patterson is applied retroactively to their case, their claims still survive Patterson and the district court wrongly dismissed the claim as a discriminatory discharge complaint not recognized under § 1981. We agree. Appellants contend that Patterson only eliminates those claims of retaliation for exercising rights that are unrelated to the specific § 1981 right to “make and enforce contracts.” But, they argue, Patterson does not eliminate a cause of action for exercising rights that do relate to the enforcement of contract rights. Appellants maintain that they are not making discriminatory discharge claims, but rather are claiming retaliatory discharge that punished them for enforcing their contract right to receive notice equal to that received by whites. Roadway counters that Rivers and Davi-son were not punished for enforcing their contract rights as The right to enforce contracts does not however extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights. Patterson, 491 U.S. at 177-78, 109 S.Ct. at 2373. However, the prohibited conduct of impairing the ability to enforce contract rights is exactly what appellants are complaining about here. Rivers and Davison were punished, they contend, for trying to utilize the established legal process for their grievances. The fact that Roadway allowed formal “access” to legal process does not imply that it could never be impairing the employee’s “ability to enforce through legal process.” An employer’s intimidation and punishment conducted inside formal legal process may impair an employee’s contract rights just as much as intimidation and punishment conducted outside formal legal process. See Carter v. South Central Bell, 912 F.2d 832, 840 (5th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991)" }, { "docid": "8152715", "title": "", "text": "of the Supreme Court in Patterson. See, e.g., Gonzalez v. Home Ins. Co., 909 F.2d 716, 722 (2d Cir.1990); McKnight v. General Motors Corp., 908 F.2d 104, 108 (7th Cir.1990); Walker v. South Cent. Bell Tel. Co., 904 F.2d 275, 276-77 (5th Cir.1990); Courtney v. Canyon Television & Appliance Rental, 899 F.2d 845, 849 (9th Cir.1990); Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807-08 (5th Cir.1990). Cf. Hicks v. Brown Group, Inc., 902 F.2d 630, 635-38 (8th Cir.1990) (discriminatory discharge completely deprives employee of employment and is therefore actionable under section 1981). We find the reasoning of the majority of these courts persuasive, and therefore we hold that discriminatory discharge claims are not actionable under 42 U.S.C. § 1981. The district court did not err in granting First Union’s motion to dismiss this claim for failure to state a claim upon which relief can be granted. II. We must also decide whether Williams’ claim that he was subjected to discriminatory working conditions in retaliation for filing EEOC charges is actionable under section 1981. Williams asserts that the alleged retaliation was in response to his efforts to enforce his contract rights by filing EEOC charges; therefore, his claim is actionable under section 1981's protection of the right to “make and enforce” a contract. We find no merit in this argument. In discussing section 1981’s “make and enforce” contracts provision, the Supreme Court in Patterson held: It [section 1981] also covers wholly private efforts to impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations_ The right to enforce contracts does not, however, extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights. Patterson, 109 S.Ct. at 2373. In this case, First Union’s alleged retaliatory conduct did not prevent Williams from filing or pursuing EEOC charges and in no way impeded or obstructed Williams’ access to legal process. The Ninth Circuit considered a nearly identical claim in Overby v. Chevron U.S.A., Inc., 884 F.2d 470 (9th Cir.1989)," } ]

[ { "docid": "23185527", "title": "", "text": "United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981) (Criden I). The right, which antedates the Constitution, id. at 819, is based upon both “historical experience and societal utility,” United States v. Smith, 776 F.2d 1104, 1114 (3d Cir.1985) (Smith I). The public’s exercise of its common law access right in civil cases promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court. See 6 J. Wigmore, Evidence § 1834 (J. Chadbourne rev. 1976). As with other branches of government, the bright light cast upon the judicial process by public observation diminishes possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness. See, e.g., Bank of America Nat. Trust v. Hotel Rittenhouse, 800 F.2d 339, 345 (3d Cir.1986) (Bank of America). Although our courts recognize a general common law right to inspect and to copy judicial records and documents, the right is not absolute. Nixon, 435 U.S. at 598, 98 S.Ct. at 1312. “Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.” Id. The common law thus merely establishes a presumption of public access to court proceedings and court records. Id. at 602, 98 S.Ct. at 1314. In resolving claims of access to trial evidence, “the strong common law presumption of access must be balanced against, the factors militating against access.” Bank of America, 800 F.2d at 344. Despite the presumption, courts may deny access to judicial records, for example, where they are sources of business information that might harm a litigant’s competitive standing. Nixon, 435 U.S. at 598, 98 S.Ct. at 1312. BIC’s challenges to the district court orders at issue here naturally circumscribe the scope of our discussion of the common law right. BIC essentially attempts to avoid the application of the common law access doctrine by arguing that (1) the three disputed documents were" } ]

[ { "docid": "3276338", "title": "", "text": "in this instance, the good cause standard imposed by Rule 26 and the strict scrutiny required by the First Amendment effectively merge. Id. at 8-9. As the special master observed, under the good cause standard, he was required to examine the materials submitted for his review on a document-by-document basis in order to determine whether the defendants had made a “particularized showing of the need for continued secrecy” by specifically demonstrating that the disclosure of these materials would cause them to suffer a “clearly defined and serious injury.” Id. at 7-8 (citing, inter alia, Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 166 (3d Cir.1993) and Glenmede Trust Co. v. Thompson, 56 F.3d 476, 484 (3d Cir.1995)). In conducting this exacting type of analysis, the special master noted, he was essentially engaging a narrowly tailored review of the sealed materials in order to determine whether there was a compelling interest in keeping them under seal. Id. at 8-9. More important, the special master also noted that although Ms. Farrell had a right of presumptive access to view these sealed materials (a right which was only heightened by the recent ruling on summary judgment), this right was not absolute. Id. at 10 (citing Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir.1986)). For example, the special master pointed out, Ms. Farrell “is not entitled to see trade secrets or other proprietary information if the disclosure of this information would expose the defendants to a competitive injury.” Id. (citing Leucadia, 998 F.2d at 166). The special master also noted that other interests may outweigh Ms. Farrell’s common law right of access to the sealed documents. Id. (citing, inter alia, Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir.1988) and United States v. Smith, 776 F.2d 1104, 1113 (3d Cir.1985)). The special master’s citation to Leuca-dia is an important one. There, the Third Circuit held that although the strong, common law right of presumptive access to judicial records is “firmly entrenched” in our legal system, it must nevertheless be “balanced against" }, { "docid": "14434296", "title": "", "text": "sealing of summary judgment papers was clearly erroneous; that the court’s finding that nearly all of the summary judgment papers contained trade secrets was clearly erroneous; and that burdening IPDA with costs of redaction unconstitutionally infringes IPDA’s and the public’s First Amendment rights and is otherwise inequitable. The Court will address each of these arguments in turn. A. Presumptive Right of Access to Judicial Records There is a presumptive common law right of public access to all material filed in connection with non-discovery pretrial motions, including summary judgment motions. Westinghouse, 949 F.2d at 660-62. The Third Circuit has also recognized that the First Amendment, independent of the common law, protects the public right of access to records of civil proceedings. Id. at 659 (citing Publicker, 733 F.2d at 1070). But see In re Cendant Corp., 260 F.3d 183, 198 n. 13 (3d Cir.2001) (noting that parameters of First Amendment right of access are as of yet undefined). Significantly, the right of access to judicial rec ords is not absolute. Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 165 (3d Cir.1993); Joint Stock Soc’y v. UDV N. Am., Inc., 104 F.Supp.2d 390, 395-96 (D.Del.2000). The presumption of access is subject to a balancing of factors that militate against access, e.g., the interest in secrecy. Leucadia, 998 F.2d at 166. It is the burden of the party seeking to overcome the presumption of access to demonstrate the need to keep the materials under seal. See, e.g., Leucadia, 998 F.2d at 167 (citing Westinghouse, 949 F.2d at 663); Bank of America, 800 F.2d at 346. Specifically, that party must demonstrate that the material contains the type of information that courts will protect and that there is good cause for continued application of an existing order, Publicker, 733 F.2d at 1070-71 (citing Zenith Radio Corp. v. Matsushita Elec. Indus. Corp., 529 F.Supp. 866, 890 (E.D.Pa.1984)). Good cause is established if there is a showing that disclosure will result in a clearly defined and serious injury to the party seeking to overcome the presumption of access. Id. at 1071. Judicial records are to" }, { "docid": "3276362", "title": "", "text": "public has the right to come to its own conclusion about the propriety of the court’s ruling on the matter. Thus, affording Ms. Farrell access to the Russian documents vindicates not only her rights and interests as a reporter but also the higher goals which those rights and interests are intended to serve. As the Third Circuit has explained, “the right of access [to judicial records] is not determined by whether evi dence is properly admitted” into the record. See Littlejohn, 851 F.2d at 679 n. 11 (citing United States v. Criden, 648 F.2d 814, 828 (3d Cir.1981)). In fact, as another district court has stated, “all materials that are the subject of an evidentiary ruling by the court, whether or not found admissible, are part of the record for purposes of the public’s right to inspect and copy.” See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 529 F.Supp. 866, 899 (E.D.Pa.1981). As a consequence, even though the Russian materials were not relevant to the issues presented to the court on summary judgment, Ms. Farrell nevertheless has a right to examine these documents. Of course, as the Third Circuit has made clear, the scope of this right is not absolute. See, e.g., Leucadia, 998 F.2d at 165 (citing Hotel Rittenhouse, 800 F.2d at 344); Westinghouse, 949 F.2d at 662 (citing same). Instead, the court must weigh the public’s interests against any countervailing concerns that militate against the disclosure of these materials, such as whether the dissemination of this information would subject the defendants to a serious risk of competitive injury or whether the disclosure of these materials might violate some other important privacy interest. See, e.g., Leucadia, 998 F.2d at 165-67; see also Westinghouse, 949 F.2d at 662-63 (distinguishing trade secret information that might cause a competitive injury if disclosed from general business information which might simply be embarrassing to the corporation if made public); Publicker, 733 F.2d at 1073-74 (same). Furthermore, the court has its own interests in protecting the integrity of its processes. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306," }, { "docid": "14434316", "title": "", "text": "Circuit case law is confined to the common law right of access. See, e.g., Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 343 (3d Cir.1986) (declining to \"decide whether [the right of access] might also be grounded on the First Amendment\"); Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir.1991) (acknowledging First Amendment right of access but limiting analysis to common law); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 161 (3d Cir.1993) (same). Although the Third Circuit has acknowledged that its opinions may be read to suggest that different standards apply depending on whether access to records is sought under the common law right of access or under the First Amendment, Bank of America, 800 F.2d at 344, common to both standards is a presumptive right of access that is subject to competing interests. . IPDA also argues that it is a \"member of the press” for First Amendment purposes. However, IPDA's claim that it is a member of the press does nothing to advance its argument insofar as the First Amendment typically does not afford the press any greater right to information than the general public. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). IPDA concedes as much, stating in its reply brief that \"[a]s to [the] argument that members of the press have no greater rights than the public, IPDA agrees.” (IPDA Reply Br. at 5); see also Tr. 13:16-14:2 (IPDA counsel stating that \"newspapers don't have any special right of access, according to the Supreme Court and according to the Third Circuit, which says, quite clearly, all parties seeking public access stand on equal footing regardless of their motive.”). . ANDAs are confidential under federal law. 21 C.F.R. § 314.430(b)-(d). It stands to reason that IPDA should not be able to gain access to that information through a court case arising out of an ANDA filing when it could not obtain the information in the ANDA filing directly." }, { "docid": "14434315", "title": "", "text": "'482 Patent, based on Warner-Lambert’s inability to meet its burden of proof, together with declarations and memoranda of law; f. Notice of Motion on behalf of all defendants for summary judgment of non-infringement of claims 7 through 11 of the '482 Patent, together with declarations and memoranda of law; g. Notice of Motion on behalf of defendants Purepac and Faulding for summary judgment of non-infringement based on use of an adjuvant excluded from claims 7 through 11 of the '482 Patent, together with declarations and memoranda of law; and h.Declarations in support of and in opposition to a motion by Ivax and related defendants for summary judgment of non-infringement based on use of an adjuvant excluded from claims 7 through 11 of the '482 Patent, together with declarations and memoranda of law. . The Court has treated IPDA’s Motion in expedited fashion due to the important competing interests at stake in this case. . The Parties filed seven declarations/certifications describing the trade secret information disclosed in the summary judgment materials. . Much of the Third Circuit case law is confined to the common law right of access. See, e.g., Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 343 (3d Cir.1986) (declining to \"decide whether [the right of access] might also be grounded on the First Amendment\"); Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir.1991) (acknowledging First Amendment right of access but limiting analysis to common law); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 161 (3d Cir.1993) (same). Although the Third Circuit has acknowledged that its opinions may be read to suggest that different standards apply depending on whether access to records is sought under the common law right of access or under the First Amendment, Bank of America, 800 F.2d at 344, common to both standards is a presumptive right of access that is subject to competing interests. . IPDA also argues that it is a \"member of the press” for First Amendment purposes. However, IPDA's claim that it is a member of the" }, { "docid": "3276343", "title": "", "text": "error with this approach. Cf. Leucadia, 998 F.2d at 166-67 (directing the district court on remand to “conduct[ ] a document-by-document review” of the sealed materials in the case and “carefully weigh[ ] the factors for and against access,” including whether the defendants had demonstrated “good cause” for the protection of the documents because they contained “bona fide trade secrets”) (relying on Cipollone, 785 F.2d at 1121). Furthermore, after conducting an independent review of the materials submitted to the special master, the court cannot conclude that he clearly erred in finding that the overwhelming majority of these documents contained “legitimate trade secrets or other proprietary information which warrant their continued ‘confidential’ designation.” Most of the sealed materials contain vodka formulas, consumer research studies, strategic plans, potential advertising and marketing campaigns or financial information. See Rept. & Rec. at 15-25, 25-30, 30-34, 34-35. The federal courts have consistently held that this type of sensitive commercial information is entitled to confidential protection. See, e.g., Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288, 294 (D.Del.1985) (protecting a secret formula); KFC Corp. v. Marion-Kay Co., Inc., 620 F.Supp. 1160, 1163, 1172 (S.D.Ind.1985) (same); see also United States v. Dentsply Intn’l, Inc., 187 F.R.D. 152, 159 n. 6 (D.Del.1999) (affording protection to corporate strategies, sales plans, and pricing information); C.A. Muer Corp. v. Big River Fish Co., 1998 WL 488007, at *1, *3-4 (E.D.Pa. Aug.10, 1998) (shielding media and advertising schedules from public disclosure). In fact, as the Leucadia court made clear, a party is entitled to protect this type of trade secret information from public view through the use of sealed filings. 998 F.2d at 166-67 (noting that the party seeking to maintain the confidentiality of its materials “must make a ‘particularized showing of the need for continued secrecy’ if the documents are to remain under seal”). For these reasons, the objections by the plaintiffs and Ms. Farrell concerning the standard of review which the special master applied will be overruled. The court will also overrule the plaintiffs’ objection that the special master erred because he “d[id] not demonstrate on" }, { "docid": "3276341", "title": "", "text": "defendants to suffer a competitive injury in the marketplace or would violate some other interest they had in keeping these materials under seal. See Rept. & Rec. at 9-10. As the special master stated in his conclusion, he ha[d] taken into consideration Ms. Farrell’s rights under the First Amendment. However, while these rights are indeed weighty, they are not absolute. Instead, they must be balanced against the interests of the defendants in protecting their trade secrets or other sensitive information. Here, the defendants have shown that the disclosure of their vodka formula and process documents, consumer research studies, strategic planning and marketing information, and financial materials would cause them a clearly defined and serious injury. Specifically, competitors who gained access to this information could use it to better position their products in the marketplace while, at the same time, undercutting the position which the defendants have established through the investment of both time and money. Rept & Rec. at 43-44. This approach was entirely proper and in accordance with the case law. As the Third Circuit has repeatedly made clear, the focus of the inquiry is aimed at determining whether the party seeking to protect sealed judicial records has specifically demonstrated the need to keep the materials under seal. See, e.g., Leucadia, 998 F.2d at 167 (citing Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d Cir.1991)); see also Hotel Rittenhouse, 800 F.2d at 346 (recognizing that the party seeking protection must make a “particularized showing of the need for continued secrecy”). Obviously, once a party makes this showing, the sealed judicial records should remain shielded from public view (even if the party seeking access has a First Amendment or common law right in viewing the materials). Here, the special master concluded that the disclosure of the limited number of materials which the defendants had submitted for his review would cause them to suffer a clearly defined and serious injury. See Rept. & Rec. at 15-25, 25-30, 30-34, 34-35, 35-43. He, therefore, recommended that these materials be kept under seal. The court can find no legal" }, { "docid": "22894539", "title": "", "text": "S.Ct. 1306, 55 L.Ed.2d 570 (1978)). Thus, the question becomes, under what circumstances may a district court seal judicial proceedings or documents, such as bids, by means of a confidentiality order. For this question, there are settled standards. In order to override the common law right of access, the party seeking the closure of a hearing or the sealing of part of the judicial record “bears the burden of showing that the material is the kind of information that courts will protect” and that “disclosure will work a clearly defined and serious injury to the party seeking closure.” Miller, 16 F.3d at 551 (citing Publicker, 733 F.2d at 1071). In delineating the injury to be prevented, specificity is essential. See Publicker, 733 F.2d at 1071. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient. As is often the case when there are conflicting interests, a balancing process is contemplated. “[T]he strong common law presumption of access must be balanced against the factors militating against access. The burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.” Leucadia, 998 F.2d at 165 (quoting Bank of Am. Nat’l Trust and Sav. Ass’n v. Hotel Rittenhouse Assoc., 800 F.2d 339, 344 (3d Cir.1986)). Additionally, because of the peculiar posture of class actions whereby some members of the public are also parties to the class action, and because of the importance of selection of lead counsel to class action plaintiffs, the test for overriding the right of access should be applied in this case with particular strictness. We are guided in the formation of a stricter standard by Miller, where the sealing order warranted exceptional scrutiny because the district court had sealed the entire record. In that case, we held: In a case such as this, involving ordinary civil litigation, the district court, before taking such an unusual step, should have articulated the compelling countervailing interests to be protected, made specific findings on the record concerning the effects of disclosure, and provided an opportunity for interested third" }, { "docid": "3276342", "title": "", "text": "Circuit has repeatedly made clear, the focus of the inquiry is aimed at determining whether the party seeking to protect sealed judicial records has specifically demonstrated the need to keep the materials under seal. See, e.g., Leucadia, 998 F.2d at 167 (citing Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d Cir.1991)); see also Hotel Rittenhouse, 800 F.2d at 346 (recognizing that the party seeking protection must make a “particularized showing of the need for continued secrecy”). Obviously, once a party makes this showing, the sealed judicial records should remain shielded from public view (even if the party seeking access has a First Amendment or common law right in viewing the materials). Here, the special master concluded that the disclosure of the limited number of materials which the defendants had submitted for his review would cause them to suffer a clearly defined and serious injury. See Rept. & Rec. at 15-25, 25-30, 30-34, 34-35, 35-43. He, therefore, recommended that these materials be kept under seal. The court can find no legal error with this approach. Cf. Leucadia, 998 F.2d at 166-67 (directing the district court on remand to “conduct[ ] a document-by-document review” of the sealed materials in the case and “carefully weigh[ ] the factors for and against access,” including whether the defendants had demonstrated “good cause” for the protection of the documents because they contained “bona fide trade secrets”) (relying on Cipollone, 785 F.2d at 1121). Furthermore, after conducting an independent review of the materials submitted to the special master, the court cannot conclude that he clearly erred in finding that the overwhelming majority of these documents contained “legitimate trade secrets or other proprietary information which warrant their continued ‘confidential’ designation.” Most of the sealed materials contain vodka formulas, consumer research studies, strategic plans, potential advertising and marketing campaigns or financial information. See Rept. & Rec. at 15-25, 25-30, 30-34, 34-35. The federal courts have consistently held that this type of sensitive commercial information is entitled to confidential protection. See, e.g., Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288, 294" }, { "docid": "3276412", "title": "", "text": "special master. . As an. aside, the court notes that, throughout these proceedings, Ms. Farrell has maintained that she has a First Amendment right to view the sealed records which effectively trumps all other interests in keeping the documents under seal. However, “[t]he Supreme Court has made it plain that all persons seeking to inspect and copy judicial records stand on the same footing, regardless of their motive for inspecting such records. Thus, the press has no greater right of access than does the general public.” See Leucadia, 998 F.2d at 167 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)). In other words, even if Ms. Farrell does have a First Amendment right to view sealed judicial records because she is a member of the press, the scope of this right is no greater than the scope of the common law right of access. As the Third Circuit has explained, this common law right is not absolute and does not extend to materials which, if disclosed, would cause a party to suffer a clearly defined and serious injury. See id. at 165-66 (citing Hotel Rittenhouse, 800 F.2d at 344 and Fed.R.Civ.P. 26(c)(7)). Thus, even if Ms. Farrell does have a First Amendment right to view sealed judicial filings, this right still does not trump a showing by the party seeking protection that disclosure of the materials will result in a competitive harm or violate some other privacy interest. . In passing, the court notes that as a result of the special master’s encouragement, the parties entered into a supplemental protective order which afforded Ms. Farrell's counsel access to the sealed documents at issue so that he could provide argument on the materials which the defendants wished to remain under seal. While the plaintiffs seemingly fault the special master for rejecting the arguments which Ms. Farrell's counsel has raised on her behalf, he can hardly be blamed for devising a way to afford this attorney greater access than he was entitled to received under the case law. .In their opposition to the" }, { "docid": "23230985", "title": "", "text": "law of presumptive access to documents filed in court does not extend to material filed with discovery motions may lead the parties to shield from view material which should not be sealed. We need not decide here whether we would interpret the Federal Rules of Civil Procedure to permit a member of the public to challenge an overly protective sealing order. See In re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 146 (2d Cir.) (permitting such intervention), cert. denied, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987). We must rely in the first instance on the district courts to protect the legitimate public interest in filed materials from overly broad and unjustifiable protective orders agreed to by the parties for their self-interests. See United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989) (“[T]he public’s right to inspect judicial records may not be evaded by a wholesale sealing-of court papers. Instead, the district court must be sensitive to the rights of the publie in determining whether any particular document, or class of documents, is appropriately filed under seal”). To recapitulate, we hold there is a presumptive right to public access to all material filed in connection with nondiseovery pretrial motions, whether these motions are case dis-positive or not, but no such right as to discovery motions and their supporting documents. B. Countervailing Interests Of course, the fact that a presumption of openness attaches to the discovery documents filed with the pretrial motions in this case does not end our inquiry. Although “the right of access is firmly entrenched, so also is the correlative principle that the right ... is not absolute.” Bank of America, 800 F.2d at 344. Rather, “the strong common law presumption of access must be balanced against the factors militating against access. The burden is on the party who seeks.to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.” Id. (citations omitted). Documents containing trade secrets or other confidential business information may be protected from disclosure. As the Supreme Court stated in Nixon v. Warner Communications, 435 U.S." }, { "docid": "14434297", "title": "", "text": "Inc., 998 F.2d 157, 165 (3d Cir.1993); Joint Stock Soc’y v. UDV N. Am., Inc., 104 F.Supp.2d 390, 395-96 (D.Del.2000). The presumption of access is subject to a balancing of factors that militate against access, e.g., the interest in secrecy. Leucadia, 998 F.2d at 166. It is the burden of the party seeking to overcome the presumption of access to demonstrate the need to keep the materials under seal. See, e.g., Leucadia, 998 F.2d at 167 (citing Westinghouse, 949 F.2d at 663); Bank of America, 800 F.2d at 346. Specifically, that party must demonstrate that the material contains the type of information that courts will protect and that there is good cause for continued application of an existing order, Publicker, 733 F.2d at 1070-71 (citing Zenith Radio Corp. v. Matsushita Elec. Indus. Corp., 529 F.Supp. 866, 890 (E.D.Pa.1984)). Good cause is established if there is a showing that disclosure will result in a clearly defined and serious injury to the party seeking to overcome the presumption of access. Id. at 1071. Judicial records are to remain sealed upon such a showing, even if the party seeking access has a First Amendment or common law right to access the materials. In short, the public right of access to judicial records does not trump all other interests and may be limited where there are important overriding interests. A well-settled exception to the right of access is the “protection of a party’s interest in confidential commercial information, such as a trade secret, where there is a sufficient threat of irreparable harm.” Id. The presence of trade secrets or other confidential information weighs against public access and, accordingly, documents containing such information may be protected from disclosure. Leucadia, 998 F.2d at 165-66; see also Publicker, 733 F.2d at 1073 (“[A]n interest in safeguarding a trade secret may overcome a presumption of openness.”) (citing Zenith, 529 F.Supp. at 890). The Third Circuit has expressly recognized that “courts may deny access to judicial records ... where they are sources of business information that might harm a litigant’s competitive standing.” Westinghouse, 949 F.2d at 662 (quoting Littlejohn" }, { "docid": "14434298", "title": "", "text": "remain sealed upon such a showing, even if the party seeking access has a First Amendment or common law right to access the materials. In short, the public right of access to judicial records does not trump all other interests and may be limited where there are important overriding interests. A well-settled exception to the right of access is the “protection of a party’s interest in confidential commercial information, such as a trade secret, where there is a sufficient threat of irreparable harm.” Id. The presence of trade secrets or other confidential information weighs against public access and, accordingly, documents containing such information may be protected from disclosure. Leucadia, 998 F.2d at 165-66; see also Publicker, 733 F.2d at 1073 (“[A]n interest in safeguarding a trade secret may overcome a presumption of openness.”) (citing Zenith, 529 F.Supp. at 890). The Third Circuit has expressly recognized that “courts may deny access to judicial records ... where they are sources of business information that might harm a litigant’s competitive standing.” Westinghouse, 949 F.2d at 662 (quoting Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir.1988)). IPDA argues that Judge Falk failed to recognize the status of the materials sought as judicial records, which conferred upon IPDA the presumption of access and requires the parties to overcome that showing with specific and particularized proof. The Court disagrees. Judge Falk properly focused on whether Plaintiff and the Generic Defendants, as the parties seeking to protect the sealed judicial records, had specifically demonstrated the need to keep the materials under seal. While it is true that Judge Falk did not specifically reference “judicial records” in his analysis, nothing in the record suggests that he failed to treat the subject summary judgment papers as such. To the contrary, Judge Falk found a particularized showing of a need for continued secrecy sufficient to overcome the presumption of access: Each of the parties has submitted detailed affidavits, declarations, setting forth in detail the nature of their trade secrets and the specific harm that will be suffered upon disclosure. Some have submitted summaries of trade secrets, which I" }, { "docid": "3276413", "title": "", "text": "would cause a party to suffer a clearly defined and serious injury. See id. at 165-66 (citing Hotel Rittenhouse, 800 F.2d at 344 and Fed.R.Civ.P. 26(c)(7)). Thus, even if Ms. Farrell does have a First Amendment right to view sealed judicial filings, this right still does not trump a showing by the party seeking protection that disclosure of the materials will result in a competitive harm or violate some other privacy interest. . In passing, the court notes that as a result of the special master’s encouragement, the parties entered into a supplemental protective order which afforded Ms. Farrell's counsel access to the sealed documents at issue so that he could provide argument on the materials which the defendants wished to remain under seal. While the plaintiffs seemingly fault the special master for rejecting the arguments which Ms. Farrell's counsel has raised on her behalf, he can hardly be blamed for devising a way to afford this attorney greater access than he was entitled to received under the case law. .In their opposition to the defendants' motions for summary judgment, the plaintiffs claimed that, in the 1990s, the defendants confirmed what they had known all along— namely, they knew they had no right to use the SMIRNOFF name because the \"rights” which they obtained in the 1930s and 1940s were invalid. See Joint Stock Soc’y, 53 F.Supp.2d at 721. However, the plaintiffs did not cite to the Russian materials to support this contention. Instead, the plaintiffs relied on other evidence (such as the many lawsuits and other proceedings in which the defendants were involved) to support this allegation. In any event, when the court ruled on the defendants' dispositive motions, it assumed that the defendants had knowingly misappropriated the marks which, as numerous federal courts have held, is the focus of the bad faith inquiry. See, e.g., Harley-Davidson, Inc. v. Estate of O'Connell, 13 F.Supp.2d 271, 279 (N.D.N.Y.1998); Davidoff Extension S.A. v. Davidoff Comercio E Industria Ltda., 141 F.Supp. 122, 132 (D.P.R.1990); Armstrong Cork Co. v. Armstrong Plastic Covers Co., 434 F.Supp. 860, 871 (E.D.Mo.1977); Alfred Dunhill of London, Inc." }, { "docid": "3276363", "title": "", "text": "Ms. Farrell nevertheless has a right to examine these documents. Of course, as the Third Circuit has made clear, the scope of this right is not absolute. See, e.g., Leucadia, 998 F.2d at 165 (citing Hotel Rittenhouse, 800 F.2d at 344); Westinghouse, 949 F.2d at 662 (citing same). Instead, the court must weigh the public’s interests against any countervailing concerns that militate against the disclosure of these materials, such as whether the dissemination of this information would subject the defendants to a serious risk of competitive injury or whether the disclosure of these materials might violate some other important privacy interest. See, e.g., Leucadia, 998 F.2d at 165-67; see also Westinghouse, 949 F.2d at 662-63 (distinguishing trade secret information that might cause a competitive injury if disclosed from general business information which might simply be embarrassing to the corporation if made public); Publicker, 733 F.2d at 1073-74 (same). Furthermore, the court has its own interests in protecting the integrity of its processes. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (“Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.”). As the United States Supreme Court has explained, pre-trial discovery by depositions and interrogatories has a significant potential for abuse. This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties .... There is an opportunity, therefore, for litigants to obtain — incidentally or purposefully — information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34-35, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). The court will weigh these competing interests in the following sections. In order best analyze the Russian materials, the court will break these documents down into the following three sub-categories: (1) materials addressing the conduct of" }, { "docid": "3276337", "title": "", "text": "to (5) this court’s decision to appoint a special master in the first place and to divide his fee evenly between the parties. The court will address these issues in turn. A. The Standard Of Review Applied By The Special Master. The plaintiffs and Ms. Farrell first contend that the special master should have used a heightened First Amendment or common law standard when conducting his review of the sealed documents (instead of the good cause standard which, they claim, he applied). In particular, these two parties argue that the defendants were obligated to show “an overriding interest based on findings that disclosure is essential to preserve higher values and is narrowly tailored to serve that interest.” See Publisher Indus., Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir.1984). Under this more rigorous standard, they argue, several of the documents should be unsealed. In his report and recommendation, the special master spent six pages discussing the similarities and differences between these varying standards of review. See Rept. & Rec. at 5-10. Ultimately, he concluded that, in this instance, the good cause standard imposed by Rule 26 and the strict scrutiny required by the First Amendment effectively merge. Id. at 8-9. As the special master observed, under the good cause standard, he was required to examine the materials submitted for his review on a document-by-document basis in order to determine whether the defendants had made a “particularized showing of the need for continued secrecy” by specifically demonstrating that the disclosure of these materials would cause them to suffer a “clearly defined and serious injury.” Id. at 7-8 (citing, inter alia, Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 166 (3d Cir.1993) and Glenmede Trust Co. v. Thompson, 56 F.3d 476, 484 (3d Cir.1995)). In conducting this exacting type of analysis, the special master noted, he was essentially engaging a narrowly tailored review of the sealed materials in order to determine whether there was a compelling interest in keeping them under seal. Id. at 8-9. More important, the special master also noted that although Ms. Farrell had a right of" }, { "docid": "3276339", "title": "", "text": "presumptive access to view these sealed materials (a right which was only heightened by the recent ruling on summary judgment), this right was not absolute. Id. at 10 (citing Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir.1986)). For example, the special master pointed out, Ms. Farrell “is not entitled to see trade secrets or other proprietary information if the disclosure of this information would expose the defendants to a competitive injury.” Id. (citing Leucadia, 998 F.2d at 166). The special master also noted that other interests may outweigh Ms. Farrell’s common law right of access to the sealed documents. Id. (citing, inter alia, Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir.1988) and United States v. Smith, 776 F.2d 1104, 1113 (3d Cir.1985)). The special master’s citation to Leuca-dia is an important one. There, the Third Circuit held that although the strong, common law right of presumptive access to judicial records is “firmly entrenched” in our legal system, it must nevertheless be “balanced against the factors militating against access.” 998 F.2d at 165 (quoting Hotel Rittenhouse, 800 F.2d at 344). As the Leucadia court explained, one of these factors is whether the documents at issue “contain[ ] trade secrets or other confidential business information.... ” Id. at 166 (citing Fed.R.Civ.P. 26(c) and its good cause standard). Thus, “[t]o overcome the presumption [of access which the common law affords], the party seeking protection must show good cause by demonstrating a particular need for protection.” Id. (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986)) (emphasis added). In other words, the court must engage in a “careful fact finding [process which] balances] the competing interests” at stake in order to determine whether “the strong presumption of openness can be overcome by the secrecy interests of private litigants.” Id. at 167. As a review of the special master’s report and recommendation makes clear, this is exactly what he did. He examined each and every document submitted for his review, considering whether the disclosure of the material would cause the" }, { "docid": "15581552", "title": "", "text": "undisputed that an FLSA settlement agreement, submitted to a court for judicial approval, is a judicial record that triggers the common law right of public access. Put simply, the public has an interest in determining whether the Court is properly fulfilling its duties when it approves an FLSA settlement agreement. Boone, 79 F.Supp.2d at 609; see also Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir.1986) (recognizing that a “court’s approval of a settlement or action on a motion are matters which the public has a right to know about and evaluate”); Stalnaker v. Novar Corp., 293 F.Supp.2d 1260, 1263 (M.D.Ala.2003) (“Absent some compelling reason, the sealing from public scrutiny of FLSA agreements between employees and employers would thwart the public’s independent interest in assuring that employees’ wages are fair and thus do not endanger ‘the national health and well-being.’ ”) (quoting Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706-07, 65 S.Ct. 895, 89 L.Ed. 1296 (1945)). The presumption of public access can be rebutted, on the other hand, “if countervailing interests heavily outweigh the public interests in access.” Rushford v. New Yorker Magazine Inc., 846 F.2d 249, 253 (4th Cir.1988). “The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption.” Id. The Court considers a broad array of factors when weighing the interest in sealing against the interest in public access, including “whether the records are sought for improper purposes such as promoting public scandals or gaining a business advantage; whether release would enhance the public’s understanding of an important historical event; and whether the public has already had access to the information contained in the records.” Knight, 743 F.2d at 235 (citing Nixon, 435 U.S. at 597-608, 98 S.Ct. 1306). Here, the parties advance one interest in support of sealing the settlement agreements: sealing will maintain the confidentiality necessary to “facilitate meaningful discussions” with the approximately 796 pending plaintiffs in other districts “by limiting the scope of [those] negotiations to each plaintiffs specific circumstance.” Doc. 36 at 4. The" }, { "docid": "3276340", "title": "", "text": "the factors militating against access.” 998 F.2d at 165 (quoting Hotel Rittenhouse, 800 F.2d at 344). As the Leucadia court explained, one of these factors is whether the documents at issue “contain[ ] trade secrets or other confidential business information.... ” Id. at 166 (citing Fed.R.Civ.P. 26(c) and its good cause standard). Thus, “[t]o overcome the presumption [of access which the common law affords], the party seeking protection must show good cause by demonstrating a particular need for protection.” Id. (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986)) (emphasis added). In other words, the court must engage in a “careful fact finding [process which] balances] the competing interests” at stake in order to determine whether “the strong presumption of openness can be overcome by the secrecy interests of private litigants.” Id. at 167. As a review of the special master’s report and recommendation makes clear, this is exactly what he did. He examined each and every document submitted for his review, considering whether the disclosure of the material would cause the defendants to suffer a competitive injury in the marketplace or would violate some other interest they had in keeping these materials under seal. See Rept. & Rec. at 9-10. As the special master stated in his conclusion, he ha[d] taken into consideration Ms. Farrell’s rights under the First Amendment. However, while these rights are indeed weighty, they are not absolute. Instead, they must be balanced against the interests of the defendants in protecting their trade secrets or other sensitive information. Here, the defendants have shown that the disclosure of their vodka formula and process documents, consumer research studies, strategic planning and marketing information, and financial materials would cause them a clearly defined and serious injury. Specifically, competitors who gained access to this information could use it to better position their products in the marketplace while, at the same time, undercutting the position which the defendants have established through the investment of both time and money. Rept & Rec. at 43-44. This approach was entirely proper and in accordance with the case law. As the Third" }, { "docid": "23230986", "title": "", "text": "documents, is appropriately filed under seal”). To recapitulate, we hold there is a presumptive right to public access to all material filed in connection with nondiseovery pretrial motions, whether these motions are case dis-positive or not, but no such right as to discovery motions and their supporting documents. B. Countervailing Interests Of course, the fact that a presumption of openness attaches to the discovery documents filed with the pretrial motions in this case does not end our inquiry. Although “the right of access is firmly entrenched, so also is the correlative principle that the right ... is not absolute.” Bank of America, 800 F.2d at 344. Rather, “the strong common law presumption of access must be balanced against the factors militating against access. The burden is on the party who seeks.to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.” Id. (citations omitted). Documents containing trade secrets or other confidential business information may be protected from disclosure. As the Supreme Court stated in Nixon v. Warner Communications, 435 U.S. at 598, 98 S.Ct. at 1312, “courts have refused to permit their files to serve as ... sources of business information that might harm a litigant’s competitive standing.” We too have explained that the presence of trade secrets in court records weighs against the right of access, although we have framed the inquiry as whether the need for secrecy outweighs the presumption of access that normally attaches to such documents. See Westinghouse, 949 F.2d at 663 (“ ‘[t]he potential effects of the disclosure of business information that might harm the litigant’s competitive standing may in some cases meet the burden of [justifying keeping] the judicial record under seal’ ”) (quoting district court opinion); see also Littlejohn, 851 F.2d at 685. Under Fed.R.Civ.P. 26(c)(7), the district court, for good cause shown, may grant a protective order requiring that “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” Fed.R.Civ.P. 26(c)(7). However, the Rules also explain that “courts have not given trade secrets automatic and" } ]

[ { "docid": "9336351", "title": "", "text": "dismissing the instant appeal for want of prosecution. See Docket Sheet at 5. However, on March 3, 2000, Plaintiffs counsel filed a notice of appearance and a motion to reinstate the appeal. See id. We granted the motion to reinstate Plaintiffs appeal on March 10, 2000. See id. II.. The only issue before this Court is whether the district court abused its discretion in dismissing the action. Pursuant to Fed.R.Civ.P. 41(b) and Local Rule 41.2, the United States District Court for the Eastern District of Michigan may dismiss complaints for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The local rule provides: [W]hen it appears that the court lacks subject matter jurisdiction or that the parties have taken no action for a reasonable time, the court may, on its own motion after reasonable notice or on application of a party, enter an order dismissing or remanding the case unless good cause is shown. An application for a continuance or pending discovery may not preclude a dismissal for failure to prosecute. E.D. Mich. LR 41.2. We consider four factors in assessing the appropriateness of a district court’s decision to dismiss a complaint for failure to prosecute: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal of the action. Knoll v. American Tel. & Tel., 176 F.3d 359 (6th Cir.1999) (citing Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir.1998)); see also Harmon v. CSX Transp., 110 F.3d 364, 366-67 (6th Cir.1997). III. In the instant case, the district court determined that dismissal of Plaintiffs civil rights action was warranted because Plaintiff exhibited a long record of delay without good cause. First, the district court noted that the original complaint was filed fourteen months prior to the hearing on the application for dismissal and that service of the" } ]

[ { "docid": "8802495", "title": "", "text": "is due to willfulness, bad faith, or fault; the second factor is whether the adversary was prejudiced by the party’s failure to cooperate in discovery; the third factor is whether the party was warned that failure to cooperate could lead to the sanction; and the fourth factor in regard to a dismissal is whether less drastic sanctions were first imposed or considered. Id.; Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir.1995); Bank One of Cleveland v. Abbe, 916 F.2d at 1073. In regard to the first factor, the Sixth Circuit has held that absent a clear record of delay or contumacious conduct, an abuse of discretion occurs if the district court dismisses an action with prejudice. Carter v. City of Memphis, 636 F.2d at 161. In Carter, this court reversed the district court’s dismissal of a discrimination case where the plaintiff’s attorney had failed to comply with a pretrial order that directed the parties to file pretrial statements and had failed to complete all discovery before the pretrial conference. Id. at 160. The district court’s pretrial order in Carter had specifically warned the parties that failure to comply could result in dismissal. In Carter, the plaintiff’s attorney, in contrast to the present case, had not even attempted to file a pretrial statement or to confer with opposing counsel about settlement. This court noted in Carter: Strict compliance with orders of a district court is an important duty of counsel. The attorney’s efforts were wholly insufficient. He failed to engage in discovery, to discuss settlement, and to file appropriate pre-trial orders in a timely fashion as ordered by the court. He did not move for a continuance. His disregard for the schedule established by the court could only have left him unprepared for trial. He did not file a Rule 60(b) motion for post-judgment relief on the grounds of excusable neglect. - Notwithstanding plaintiffs attorney’s conduct, in our view, the district court abused its discretion in dismissing the complaint. Id. at 161. In the present case, the district court decided that the extreme sanction of preclusion of plaintiffs’ expert" }, { "docid": "8739603", "title": "", "text": "can dismiss an action for noncompliance with a local rule only if the behavior of the noncomplying party rises to the level of a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. When contemplating dismissal of an action under Rule 41(b), a court must consider: (1) whether the party’s failure to cooperate is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dilatory conduct of the party; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. Stough, 138 F.3d at 615 (citing Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir.1988)). In the instant action, the district court did not conduct any analysis concerning Te-tro’s procedural deficiencies, much less the analysis required by Stough. An examination of the above elements as applied to the facts of the present case convinces us that the district court abused its discretion when it dismissed Tetro’s action. First, the district court did not find that Tetro’s counsel acted willfully or in bad faith. Rather, Tetro’s counsel explained that the reason for his failure to appear at the pretrial conference was due to his erroneous entry of the date into his calendar. The behavior of Tetro’s counsel clearly does not rise to the level of contumacious conduct. Second, there is no evidence that the dealership suffered any prejudice beyond wasting approximately one hour waiting for Tetro and his counsel to appear. Third, the district court failed to provide Tetro with any warning that a failure to comply with the procedural requirements could result in dismissal. Finally, despite the fact that his conduct surrounding the pretrial conference was the only incident of procedural noncompliance committed by Tetro’s counsel, the district court did not even consider a less drastic sanction before it ordered that the case be dismissed with prejudice. For all of these reasons, we conclude that the district court committed a clear error of judgment when it dismissed Tetro’s" }, { "docid": "8802494", "title": "", "text": "side of defendant and then imposing the most drastic sanction possible upon plaintiffs, who were blameless, and as a result, lost their day in court. See Coleman v. American Red Cross, 23 F.3d at 1094-95 (“this court ... has been extremely reluctant to uphold the dismissal of a case merely to discipline an attorney”); Vinci v. Consolidated Rail Corporation, 927 F.2d 287, 287-88 (6th Cir.1991) (dismissal usually inappropriate where the neglect is the sole fault of the attorney); Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (6th Cir.1985) (same); Carter v. City of Memphis; 636 F.2d 159, 161 (6th Cir.1980) (reversing a dismissal under Rule 41(b) because, while plaintiff’s counsel had been inept, the plaintiff was blameless). This court has determined that four factors are to be considered when reviewing a decision by a district court to impose sanctions under Rule 37. Regional Refuse Systems, Inc. v. Inland Reclamation Co., 842 F.2d 150, 154-55 (6th Cir.1988) [hereinafter, the “Regional Refuse test”]. The first factor is whether the party’s failure to cooperate in discovery is due to willfulness, bad faith, or fault; the second factor is whether the adversary was prejudiced by the party’s failure to cooperate in discovery; the third factor is whether the party was warned that failure to cooperate could lead to the sanction; and the fourth factor in regard to a dismissal is whether less drastic sanctions were first imposed or considered. Id.; Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir.1995); Bank One of Cleveland v. Abbe, 916 F.2d at 1073. In regard to the first factor, the Sixth Circuit has held that absent a clear record of delay or contumacious conduct, an abuse of discretion occurs if the district court dismisses an action with prejudice. Carter v. City of Memphis, 636 F.2d at 161. In Carter, this court reversed the district court’s dismissal of a discrimination case where the plaintiff’s attorney had failed to comply with a pretrial order that directed the parties to file pretrial statements and had failed to complete all discovery before the pretrial conference. Id. at 160. The" }, { "docid": "23135073", "title": "", "text": "of Civil Procedure authorizes the district court to dismiss a plaintiff’s action for failure to prosecute. In Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Supreme Court upheld a district court’s dismissal under this rule of a plaintiff’s action because plaintiff’s counsel failed to appear at a scheduled pretrial and had, up to the time of the pretrial, deliberately proceeded in a dilatory fashion. Id. at 633, 82 S.Ct. at 1390. The Court was careful to note that it was not deciding “whether explained absence from a pretrial conference would alone justify dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff.” Id. at 634, 82 S.Ct. at 13. In interpreting the district court’s authority under Rule 41(b) to dismiss a party’s action for a failure to prosecute or comply with a court order, this court has frequently cautioned that such a'dismissal “is a harsh sanction which the court should order only in extreme situations showing ‘a clear record of delay or contumacious conduct by the plaintiff.’ ” Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir.1980) (quoting Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir.1978)). See also Bishop v. Cross, 790 F.2d 38, 39 (6th Cir.1986) (dismissal requires a “degree of willfulness, bad faith or contumacious conduct”); Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (6th Cir.1985); Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.1980). However, in Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.1988), this court, after reviewing a number of earlier decisions from this circuit, concluded that [f]rom these cases we extract the principle that in absence of notice that dismissal is contemplated a district court should impose a penalty short of dismissal unless the derelict party has engaged in “bad faith or contumacious conduct.” See also Schilling v. Walworth County Park & Planning Commission, 805 F.2d 272, 276-77 (7th Cir.1986) (district court should warn pro se litigants of possible consequences of neglect if it intends to sanction with" }, { "docid": "5958667", "title": "", "text": "court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs ... (C) of subdivision (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action.... Fed.R.Civ.P. 37(d). Rule 37(b)(2)(C) authorizes the district court to dismiss the action. Fed.R.Civ.P. 37(b)(2)(C). Here, the United States made two requests to produce documents. After Claimant failed to respond to the second request, the government filed the motion to strike. In that motion the United States represented that it attempted to contact Claimant on two occasions; on July 17, 2000, and again on July 21, 2000. Thus, under Rule 37(d) and (b)(2)(C), the district court had authority to dismiss the case. Alternatively, the United States argues that the district court had authority to dismiss under Rule 37(b) or Rule 41(b) and its inherent authority. In reviewing a district court’s dismissal under either Rule 37(b)(2) or Rule 41(b), we consider four factors: “(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered.” Knoll v. Am. Tel. & Telegraph Co., 176 F.3d 359, 363 (6th Cir.1999). Although no one factor is dispositive, dismissal is proper if the record demonstrates delay or contumacious conduct. Acevedo has the burden of showing that his failure to comply was due to inability, not willfulness or bad faith. Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988). Thus, it is presumed that dismissal is not an abuse of discretion if the party has the ability to comply with a discovery" }, { "docid": "22563616", "title": "", "text": "client for the sins of his attorney. Subsection (b)(2) of Federal Rule of Civil Procedure 37 provides that [i]f a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (C) An order ... dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. Federal Rule of Civil Procedure 41(b) provides, in part, that “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action.” We review a district court’s decision to invoke discovery sanctions for an abuse of discretion. Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988). In assessing a district court’s decision to dismiss a complaint, we consider four factors in particular: (1) whether the party’s failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2) “whether the adversary was prejudiced by the dismissed party’s failure to cooperate in discovery”; (3) “whether the dismissed party was warned that failure to cooperate could lead to dismissal”; and (4) “whether less drastic sanctions were imposed or considered before dismissal was ordered.” Id. at 153-55. In Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Supreme Court affirmed a district court’s decision to dismiss a complaint for failure to prosecute. The district court had dismissed the case, sua sponte, without notice or hearing, after the plaintiffs attorney failed to appear at a scheduled pretrial conference. Id. at 628-29, 82 S.Ct. at 1387-88. The plaintiffs attorney had previously waited 19 months to respond to the defendant’s initial interrogatories, had answered those interrogatories only after being threatened with dismissal, and had responded to further interrogatories only after requesting an extension of time. Id. at 634 n. 11, 82 S.Ct. at 1391 n. 11. Although the case was six years old at the time" }, { "docid": "8739602", "title": "", "text": "of the Middle District of Tennessee required Tetro’s attorney to initiate preparation of a pretrial order. In addition, Rule 16(f) of the Federal Rules of Civil Procedure provides for sanctions in the event that a party fails to appear at a scheduling or pretrial conference. When Tetro’s counsel failed to prepare for or attend the pretrial conference, the district court sanctioned Tetro in the most severe manner possible — dismissal of his complaint with prejudice. In Carver v. Bunch, 946 F.2d 451, 453 (6th Cir.1991), this court acknowledged that district courts possess broad discretion to sanction parties for failing to comply with procedural requirements. Carver cautioned, however, that the sanction of dismissal for failure to prosecute “is a harsh sanction which the court should order only in extreme situations showing a ‘clear record of delay or contumacious conduct by the plaintiff.’ ” Id. at 454 (quoting Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980)). As this court explained in Stough, 138 F.3d at 616, the Carver court concluded that a district court can dismiss an action for noncompliance with a local rule only if the behavior of the noncomplying party rises to the level of a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. When contemplating dismissal of an action under Rule 41(b), a court must consider: (1) whether the party’s failure to cooperate is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dilatory conduct of the party; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. Stough, 138 F.3d at 615 (citing Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir.1988)). In the instant action, the district court did not conduct any analysis concerning Te-tro’s procedural deficiencies, much less the analysis required by Stough. An examination of the above elements as applied to the facts of the present case convinces us that the district court abused its discretion when" }, { "docid": "23605566", "title": "", "text": "of any claim against him____ Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits. Fed.R.Civ.P. 41(b). . \"A dismissal with prejudice is a harsh sanction which should usually be employed only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.\" Webber, 721 F.2d at 1069. . A consideration of lesser sanctions in such circumstances is particularly important when “the action is relatively young, a litigant is proceeding pro se, or no prior warning has been given that a sanction of dismissal will be imposed.” Schilling, 805 F.2d at 278. . The plaintiffs further argue that Rule 41(b) simply does not apply in this case. In support, they cite Societe Internationale v. Rogers, in which the Supreme Court stated, \"whether a court has power to dismiss a complaint because of noncompliance with a production order depends exclusively upon Rule 37____” 357 U.S. 197, 207, 78 S.Ct. 1087, 1093, 2 L.Ed.2d 1255 (1958). We agree that Rule 41(b) would be an inappropriate basis for a dismissal solely for the plaintiffs’ failure to comply with the January 15 discovery order. The district court here specifically stated, however, that it was not basing its dismissal on that one failure but was dismissing because of a continuing pattern of delay, noncooperation and disobedience on the part of the plaintiffs. Under these circumstances, the district court acted correctly in considering the plaintiffs’ noncompliance with the January 15 order as one of a number of relevant factors in its decision to dismiss pursuant to Rule 41(b). . Rule 37(b)(2) provides in relevant part: If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any" }, { "docid": "2723470", "title": "", "text": "the action; (3) failing to comply with the Settlement Conference Order; (4) failing to inform opposing counsel or the court of his counsel’s alleged injury; (5) failing to attempt service for almost three months; and (6) making knowingly false statements to the court in his motion to extend the non-expert discovery cut-off date. Rule 37(b)(2) permits a court to strike pleadings where a party fails to obey discovery orders. Rule 41(b) permits a court to dismiss an action with prejudice if the plaintiff fails to prosecute or to comply with a court order. The criteria for sanctions under either of these two rules are the same. Luden v. Breweur, 9 F.3d 26, 29 (7th Cir.1993). A court also has an “inherent power” to “levy sanctions in response to abusive litigation practices.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). We have held that in reviewing the imposition of sanctions for an abuse of discretion, an appellate court should consider: “(1) whether the adversary was prejudiced by the dismissed party’s failure to cooperate in discovery, (2) whether the dismissed party was warned that failure to cooperate could lead to dismissal, and (3) whether less drastic sanctions were imposed or considered before dismissal was ordered.” Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th Cir.1988). Here, the district court found that there would be prejudice to Appellees because Bentkowski had not yet perfected service on newly named defendants, and the need of those new defendants to conduct their own discovery would delay the case. The district court clearly placed Bentkowski on notice of the possibility of sanctions because the Case Management Order stated that “[t]his Order shall constitute notice for purposes of sanctions up to and including dismissal and/or striking of offending party’s pleadings for failure to abide by any Court Order.” The district court did not specifically state whether it considered less drastic sanctions. However, it found that Bentkowski knowingly made false representations in his motion for extension of time. Cf. Patton v. Aerojet Ordnance Co., 765 F.2d 604, 607 (6th Cir.1985) (“Dismissal" }, { "docid": "23605565", "title": "", "text": "that may be solely the fault of the plaintiffs’ attorneys. A court’s power of dismissal would be almost worthless, however, if a court could not hold a litigant responsible for the acts of his or her attorney where those acts meet the requirements of Rule 37 (willfulness, bad faith or fault) and Rule 41 (clear record of delay, contumacious conduct or prior failed sanctions). See Link, 370 U.S. at 633-34, 82 S.Ct. at 1390. Given that the requirements of these rules were met in this case and that the district court found the plaintiffs’ noncompliance to be “deliberate, willful, and in bad faith,” the plaintiffs may have legal recourse against their attorneys. We find, however, that the district court did not abuse its discretion, and accordingly, we affirm the district court’s refusal to alter its judgment dismissing the plaintiffs’ complaint. . Rule 41(b) provides in relevant part: For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him____ Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits. Fed.R.Civ.P. 41(b). . \"A dismissal with prejudice is a harsh sanction which should usually be employed only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.\" Webber, 721 F.2d at 1069. . A consideration of lesser sanctions in such circumstances is particularly important when “the action is relatively young, a litigant is proceeding pro se, or no prior warning has been given that a sanction of dismissal will be imposed.” Schilling, 805 F.2d at 278. . The plaintiffs further argue that Rule 41(b) simply does not apply in this case. In support, they cite Societe Internationale v. Rogers, in which the Supreme Court stated, \"whether a court has power to dismiss a complaint because of noncompliance with a production order depends exclusively upon Rule 37____” 357 U.S. 197, 207, 78 S.Ct. 1087, 1093," }, { "docid": "2115239", "title": "", "text": "(6th Cir.2006) (internal quotation marks omitted). III. ANALYSIS It is well settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980). Nonetheless, “[t]he dismissal of a claim for failure to prosecute is a harsh sanction which the court should order only in extreme situations showing a clear record of contumacious conduct by the plaintiff.” Wu, 420 F.3d at 643 (internal quotation marks omitted). In Link, the Supreme Court stated that there was “no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client.” Link, 370 U.S. at 633, 82 S.Ct. 1386. Although this principle — that generally it is not unduly unfair to punish a client for his counsel’s errors — remains valid, “we have increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.” Coleman v. Am. Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994); see Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir.2001) (“[T]his Court has expressed an extreme reluctance to uphold the dismissal of a case merely to discipline a party’s attorney.”). This is because dismissing a plaintiffs case with prejudice “deprives a plaintiff of his day in court due to the inept actions of his counsel.” Patterson v. Twp. of Grand Blanc, 760 F.2d 686, 688 (6th Cir.1985). Accordingly, “[dismissal is usually inappropriate where the neglect is solely the fault of the attorney.” Carter, 636 F.2d at 161. Under this court’s precedent, we consider four factors when determining whether dismissal for failure to prosecute was within the district court’s discretion: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal" }, { "docid": "5958668", "title": "", "text": "that the district court had authority to dismiss under Rule 37(b) or Rule 41(b) and its inherent authority. In reviewing a district court’s dismissal under either Rule 37(b)(2) or Rule 41(b), we consider four factors: “(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered.” Knoll v. Am. Tel. & Telegraph Co., 176 F.3d 359, 363 (6th Cir.1999). Although no one factor is dispositive, dismissal is proper if the record demonstrates delay or contumacious conduct. Acevedo has the burden of showing that his failure to comply was due to inability, not willfulness or bad faith. Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988). Thus, it is presumed that dismissal is not an abuse of discretion if the party has the ability to comply with a discovery order but does not. Claimant has not proffered anything to overcome this presumption. Claimant did not file his petition until five months after his wife’s death, nor did he explain how his mother’s illness impeded his ability to gather the necessary documents. He claims a language barrier and poor record keeping, but he did not explain why he did not sign the bank authorizations and send them on in a timely fashion so that the United States could seek the documents itself. Counsel’s conduct is also attributable to his client. See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Harmon, 110 F.3d at 367-69. Nor do the other factors change the result. The United States suffered prejudice in that it could not comply with the district court’s September 15, 2000 discovery deadline. Without answers to document requests, the Government could not schedule depositions or other discovery. Although Claimant did not have a prior warning, the United States’s motion to strike provided some notice. Cf. Harmon, 110 F.3d" }, { "docid": "22563620", "title": "", "text": "delinquent lawyer rather than an innocent client.” Coleman v. American Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994). Accordingly, the Regional Refuse factors, set forth above, have been applied more stringently in cases where the plaintiffs attorney’s conduct is responsible for the dismissal. With regard to the first factor, this court has stated that “dismissal of an action for an attorney’s failure to comply” should only be ordered where there is “ ‘a clear record of delay or contumacious conduct.’ ” Carter, 636 F.2d at 161 (citation omitted). Similarly, with regard to the third factor, the court has explained that where a plaintiff has not been given notice that dismissal is contemplated, “a district court should impose a penalty short of dismissal unless the derelict party has engaged in ‘bad faith or contumacious conduct.’ ” Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.1988) (citation omitted). Finally, with regard to the fourth factor, although it is clear that the failure of the district court to impose or make explicit its consideration of lesser sanctions is not fatal, see Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1079 (6th Cir.1990); Regional Refuse, 842 F.2d at 155, this court recently stated that, in the absence of such consideration, and “in the absence of contumacious conduct, an alternate sanction that would protect the integrity of pretrial procedures should be utilized rather than dismissal with prejudice,” Freeland v. Amigo, 103 F.3d 1271, 1280 (6th Cir.1997). Clearly it is difficult to define the quantity or quality of the misconduct which may justify dismissal with prejudice as the first and only sanction. This difficulty is no doubt part of the reason that we review a district court’s judgment in such cases only for an abuse of discretion. We note, however, that despite this court’s reluctance to affirm the harsh sanction of dismissal in cases “where the neglect is solely the fault of the attorney,” there should be no doubt that this court cannot require of a district court any greater forbearance than the Supreme Court required in Link. That is to say, that whatever" }, { "docid": "22442919", "title": "", "text": "that he would receive an additional pretrial order from Judge Campbell, to whom the case had been assigned for trial. On March 27, Judge Campbell denied the Rule 60(b) motion. On April 26, counsel for Silas filed a timely appeal from that denial, which is the matter now before this court. The fundamental question before us in this appeal is whether Silas’s action should have been dismissed because of his attorney’s failure to prepare for and appear at the pretrial conference. The matter is complicated, however, by the fact that Silas’s counsel has raised the question in a Rule 60(b)(1) motion alleging excusable neglect rather than in a direct appeal of the dismissal. The district court, of course, had authority to order the attorneys for both parties to prepare for and appear at a pretrial conference. See Fed.R.Civ.P. 16. The district court also had authority, upon disregard of such an order, to impose appropriate sanctions on the offending party and his counsel, including, if necessary, dismissal of the plaintiff’s action. See Fed.R.Civ.P. 41(b) (expressly recognizing the district court’s power to dismiss an action with prejudice for failure to comply with an order of court or for failure to prosecute); Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (recognizing the inherent authority of a federal trial court to dismiss plaintiff’s action for failure to prosecute in order to prevent undue delays in the disposition of pending cases and calendar congestion). To withstand appellate reversal, the choice of a particular sanction in a given case need merely fall within the permissible range of the court’s discretion in light of the circumstances. See Link v. Wabash Railroad Co., supra; Flaksa v. Little River Marine Construction Co., 5 Cir., 1968, 389 F.2d 885, 887-88. The discretion vested in the trial court to select an appropriate sanction is broad but not unlimited. In this circuit it is well established that dismissal with prejudice is a drastic remedy to which a court may resort only in extreme situations where there is “a clear record of delay or contumacious conduct" }, { "docid": "23039523", "title": "", "text": "Not only have the attorneys not met prior to the conference, but also the attorney for the plaintiff has not even attempted to prepare a Pre-trial Order or Proposed Pre-trial Order. This court is of the opinion that a dismissal with prejudice is warranted in the total circumstances. App. 33. II. The sole issue on appeal is whether the district court abused its discretion in dismissing the action. It is clear that the district court does have the power under Rule 41(b), Fed.R.Civ.P., to enter a sua sponte order of dismissal. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The dismissal of an action for an attorney’s failure to comply is a harsh sanction which the court should order only in extreme situations showing “a clear record of delay or contumacious conduct by the plaintiff.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978). See Edsall v. Penn Central Transp. Co., 479 F.2d 33 (6th Cir. 1973) (per curiam). Absent this showing, an order of dismissal is an abuse of discretion; the court is limited to lesser sanctions designed to achieve compliance, 586 F.2d at 385. The sanction of dismissal is appropriate only if the attorney’s dilatory actions amounted to failure to prosecute and no alternative sanction would protect the integrity of pre-trial procedures. J. F. Edwards Const. Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318 (7th Cir. 1976) (per curiam). As the Seventh Circuit has stated, “the key is a failure to prosecute, whether styled as a failure to appear at a pre-trial conference, failure to file a pre-trial statement, failure to prepare for conference, or failure to comply with the pre-trial order.” Id. at 1323. Dismissal is usually inappropriate where the neglect is solely the fault of the attorney. Strict compliance with orders of a district court is an important duty of counsel. The attorney’s efforts here were wholly insufficient. He failed to engage in discovery, to discuss settlement, and to file appropriate pre-trial orders in a timely fashion as ordered by the court." }, { "docid": "10001485", "title": "", "text": "Green to address the only proper issue on appeal, whether the district court abused its discretion by dismissing the action under F.R. Civ.P. 41(b). Rule 41(b) provides, in part, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of any action or of any claim against him.” We have cautioned that dismissal in this context is a drastic tool and may be appropriately invoked only after careful analysis of several factors, including, (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet the 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 v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984); see Scarborough v. Eubanks, 747 F.2d 871 (3d Cir.1984). In this case, the district court specifically determined that Mr. Green acted in bad faith to avoid bringing this case to trial. We believe the record fully supports this finding and that Mr. Green’s conduct rises to the level of willfulness and contumaciousness necessary to support the sanction of dismissal. See Donnelly v. JohnsManville Sales Corp., 677 F.2d 339 (3d Cir.1982). The district court further found that defendant was prejudiced by the pattern of dilatoriousness but no specific evidence is noted and we find none other than delay. The court also stated that it had considered the imposition of alternative sanctions but it had “determined that such sanctions would have little or no effect in bringing this ease to trial.” The district court evaluated certain of the factors mentioned in Poulis. It cannot be said that its appraisal amounted to an abuse of discretion. This is particularly so given the extraordinary patience of the court in dealing with Mr. Green. However, one of the factors to be considered" }, { "docid": "22937893", "title": "", "text": "representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Id. at 633-34, 82 S.Ct. 1386. This court has been “reluctant to uphold the dismissal of a case ... merely to discipline an errant attorney because such a sanction deprives the client of his day in court.” Buck v. U.S. Dep’t of Agric., Farmers Home Admin., 960 F.2d 603, 608 (6th Cir.1992). Hence, “[although the Link principle remains valid, ... we have increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.” Coleman v. American Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994) (citation omitted). In the context of dismissal pursuant to Rule 41(b) for failure to prosecute, we look to four factors for guidance: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. Stough v. Mayville Community Sch., 138 F.3d 612, 615 (6th Cir.1998). Although typically none of the factors is outcome dispositive, it is said that a case is properly dismissed by the district court where there is a clear record of delay or contumacious conduct. Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980). In Bishop v. Cross, 790 F.2d 38 (6th Cir.1986), this court reversed a district court’s Rule 41(b) dismissal where the plaintiffs’ attorney, but not the plaintiffs themselves, was present for voir dire. Counsel had not realized that his clients were required to be present, and one plaintiff, a long-haul truck driver, was out on a job and was not expected to be back for several days. In light of the apparently inadvertent nature of plaintiffs coun sel’s mistake, this court held that the error did not constitute “contumacious conduct” and that the case was improperly dismissed. Similarly, in Carter v. City of Memphis, supra, this court reversed a district court’s Rule 41(b) dismissal with" }, { "docid": "23605556", "title": "", "text": "under both rules is limited to whether the court abused its discretion in dismissing the plaintiffs’ suit. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam); Link v. Wabash R.R. Co., 370 U.S. 626, 629-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962). A. Under Rule 41(b), a court may dismiss an action with prejudice “[f]or failure of the plaintiff to prosecute or to comply with these rules [i.e., the Federal Rules of Civil Procedure] or any order of court.” A court reviewing the dismissal of an action or claim must consider the procedural history of the case as well as the status of the case at the time of the dismissal. Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 275 (7th Cir.1986); Stevens v. Greyhound Lines, Inc., 710 F.2d 1224, 1228 (7th Cir.1983). We have often noted that the great severity of the sanction of dismissal with prejudice requires that district courts resort to it only infrequently. E.g., Schilling, 805 F.2d at 275; Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir.1983). Specifically, a court should dismiss a case pursuant to Rule 41 only when there exists a clear record of delay or contumacious conduct or when less drastic sanctions have proven ineffective. Schilling, 805 F.2d at 275; Webber, 721 F.2d at 1069; Locascio v. Teletype Corp., 694 F.2d 497, 499 (7th Cir.1982). Absent a clear record of delay, contumacious conduct or prior failed sanctions, “the careful exercise of judicial discretion requires that a district court consider less severe sanctions and explain, where not obvious, their inadequacy for promoting the interests of justice.” Schilling, 805 F.2d at 275. Although dismissal is a harsh sanction that should be imposed infrequently, we recognize that the power to sanction through dismissal is essential to the district courts’ ability to manage efficiently their heavy caseloads and thus protect the interests of all litigants. See Link, 370 U.S. at 630-31, 82 S.Ct. at 1388-89; Stevens, 710 F.2d at 1230. Thus, we will uphold a dismissal by a" }, { "docid": "2115240", "title": "", "text": "client.” Coleman v. Am. Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994); see Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir.2001) (“[T]his Court has expressed an extreme reluctance to uphold the dismissal of a case merely to discipline a party’s attorney.”). This is because dismissing a plaintiffs case with prejudice “deprives a plaintiff of his day in court due to the inept actions of his counsel.” Patterson v. Twp. of Grand Blanc, 760 F.2d 686, 688 (6th Cir.1985). Accordingly, “[dismissal is usually inappropriate where the neglect is solely the fault of the attorney.” Carter, 636 F.2d at 161. Under this court’s precedent, we consider four factors when determining whether dismissal for failure to prosecute was within the district court’s discretion: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal of the action. Mulbah, 261 F.3d at 589. Although we acknowledge that Carpenter’s counsel’s conduct in pursuing his client’s claims was inept, improper, and unprofessional, applying the four-factor test outlined above leads us to conclude that the district court abused its discretion in dismissing the case with prejudice. A. Willfulness, Bad Faith, or Fault The first factor — whether the party’s failure is due to willfulness, bad faith, or fault — requires “a clear record of delay or contumacious conduct.” Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir.1997). Contumacious conduct refers to be havior that is “ ‘perverse in resisting authority’ and ‘stubbornly disobedient.’ ” Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir.2008) (quoting Webster’s Third New International Dictionary 497 (1986)). The plaintiffs “conduct ‘must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct on those proceedings.’ ” Wu, 420 F.3d at 643 (quoting Mulbah, 261 F.3d at 591). The conduct at issue here includes (i) repeated failures to abide" }, { "docid": "14725175", "title": "", "text": "& CC’s use of the claimed method would have been evidence of copying relevant to AT & CC’s assertion that the ’833 and ’622 patents were invalid under 35 U.S.C. § 103. Therefore, the material the AT & CC did not produce was specifically related to AT & CC’s counterclaim. The district court’s order therefore complies with the due process requirement enunciated by the Supreme Court. The dismissal of AT & CC’s counterclaims was also consistent with Sixth Circuit law. The Sixth Circuit considers four factors in reviewing a district court order dismissing all or part of an action as a discovery sanction: (1) whether the failure to cooperate was due to willfulness, bad faith, or fault; (2) whether the failure to cooperate prejudiced the adversary; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were considered. See Regional Refuse Systems, Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir.1988). In this case, the district court found that AT & CC’s willful failure to comply with the March 10 order prejudiced Seal-Flex. See Seal-Flex, slip op. at 15 (June 12, 1997) (order granting motion for emergency sanctions) (“Defendant’s deliberate obstructionist and deceitful tactics have wasted substantial judicial resources [and] there appears to be no practical way for the information that has been destroyed to be reconstructed.”). The March 10 order warns that noneompliance was considered “a serious abuse of the litigation process, for which ... sanctions may be imposed pursuant to Fed.R.Civ.P. 37(b) and/or the inherent powers of the court.” Seal-Flex, slip op. at 2 (March 10,1997). Dismissal of a claim is one of the sanctions listed in Rule 37(b). Although the Sixth Circuit has upheld a sanction order dismissing a claim without explicit consideration of a lesser penalty, see Harmon, 110 F.3d at 369, in this case, the district court implicitly considered lesser sanctions. The district court stated: This court is well aware that the sanction of dismissal is an extreme sanction which is not to be imposed lightly.... [However,] considering the defendant’s and his" } ]

[ { "docid": "22086912", "title": "", "text": "to relieve the needs and to make secure the maintenance of his children and the education and support of his grandchildren. The gifts were placed in trust because Suzanne and Jack had lost prior gifts in unsuccessful projects. The decedent desired to protect them against their own business misadventures and not to retain any benefit, directly or indirectly, to himself. He made the gifts to meet their necessities and desired to set aside the trust property, freed from all claims, tax or otherwise. The decedent, however, retained under the trusts a power to amend with the consent of the trustee and beneficiary. At the time the trusts were established in 1925 and enlarged in 1934 he believed that the gifts were complete and absolute and intended them to be such. He was a lawyer and believed that under the federal law the reservation of such a power to amend would not require the inclusion in his gross estate at his death of the value of the corpus of each trust. But in 1935 Helvering v. City Bank Farmers Trust Co., 296 U. S. 85, was decided, holding that the reservation of a power to amend brought the corpus of the trust into the settlor’s estate, even though the power could not be exercised by the settlor alone. Upon being advised in 1937 that the gifts remained a part of his estate for estate tax purposes, decedent executed an instrument renouncing the power to amend the trusts. This was done so that the trusts would not be a part of his estate for estate tax purposes. At that time, as well as in 1925 and 1934, the decedent was in average good health for a man of his age. He released the power to amend so as to put the trusts in the condition he had thought they were in when he made them. The release was designed to carry out his original purpose in setting aside the property freed from all claims, tax or otherwise. In 1925, 1934, and 1937, he did not entertain thoughts of death except the general" } ]

[ { "docid": "17113849", "title": "", "text": "not sufficient by itself to make section 811(c) applicable. Petitioner relies on Allen v. Trust Co. of Georgia, 326 U.S. 630, 66 S.Ct. 389, 90 L.Ed. 367, to support this proposition. The facts in that case were unique and not similar to the instant case. There a power to amend a trust was' relinquished by the settlor admittedly to avoid the inclusion of the trusts in his gross estate, but the lower court found, and the Circuit Court of Appeals affirmed, that the original trusts which had been created many years before had not been created in contemplation of death and that the relinquishment of the power to amend was made because of a change in the law after the trusts had been created. The Supreme Court held that the relinquishment was a supplementary step in an integrated transaction which was not one in contemplation of death. In the present case the agreement is the entire transaction solely to avoid taxes, not merely a step to perfect a prior disposition of the property. The motive to avoid estate taxes is obviously one that contemplates death, for it is not until death that the taxes are applicable to the estate. “The transfer is made in contemplation of death if the thought of death is the ‘impelling cause of the transfer.’ City Bank Farmers Trust Co. v. McGowan, 323 U.S. 594, 599, 65 S.Ct. 496, 498 [89 L.Ed. 483].” Allen v. Trust Co. of Georgia, 326 U.S. 630, 635, 66 S.Ct. 389, 391. See note, 37 Cal.Law Rev. 312. Petitioner’s contention that the decedent received full and adequate consideration for the transfer will be considered only as to that portion of the property which was acquired prior to July 29, 1927, the effective date of Cal.Civil Code § 161a, which made the wife’s interest in community property present, existing and equal. What we have held regarding the post-1927 community property makes it unnecessary to consider that portion of the Tax Court’s opinion-relating to adequacy of consideration as to that property because there was no transfer of an interest involved. We hold that" }, { "docid": "11860164", "title": "", "text": "settlor’s death depended on the consent of the majority of the trustees. Thus, after the settlor’s death, one of the three sons plus the corporate trustee could have vetoed the attempts of two of the sons to invade their share of the principal. Each of the sons had only a special power to appoint the remainder to relatives by blood or marriage or for any charitable purpose. The powers granted were thus substantially different from general powers of appointment. See Restatement, Property, § 320. In fact, we have held that even where the life beneficiary is given a general testamentary power of appointment, the reserved power in the settlor to terminate the trust and distribute the corpus to the life beneficiaries renders the remainder taxable under Section 811 (d) (2). Mellon v. Driscoll, supra. The taxpayers urge upon us the contention, however, that the instant case is governed by Helvering v. Helmholz, 1935, 296 U.S. 93, 56 S.Ct. 68, 80 L.Ed. 76. The Supreme Court there held that a provision in the trust indenture that the trust could be terminated with the consent of the then beneficiaries was not a power to alter, amend, or revoke within the contemplation of Section 302(d) of the Internal Revenue Act of 1926 (the predecessor of Section 811 (d) of the Internal Revenue Code) because it added nothing to the powers possessed by the beneficiaries under the applicable state law. The rule of this case has been incorporated into Treasury Regulation 10'5, § 81.20, the pertinent portion of which states: “The provisions of this section do not apply to a transfer if the power may be exercised only with the consent of all parties having an interest, vested or contingent, in the transferred property, and if the power adds nothing to the rights of the parties as conferred by the applicable local law.” It is admitted that under Pennsylvania law a trust such as this can be terminated only with the joint consent of the settlor and all beneficiaries, including contingent remaindermen. See In re Bowers’ Trust Estate, 1943, 346 Pa. 85, 29 A.2d" }, { "docid": "14292032", "title": "", "text": "that the possibility of reverter which was in the insured and would have resulted in payment of $50,000 and $6,517 to his estate, had his wife died before him, was terminated by his death, and this determination of his interest was an event which rendered the interest includable in his gross estate. In Bingham v. United States, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160, Section 402(f) of the Revenue Act of 1918, 40 Stat. 1097, 1098, was considered. That section was similar to Section 302(g) of the Act of 1926 now before us. A majority of the Supreme Court held that the statute was not to be construed as applicable to an insurance policy made payable' to a beneficiary directly or by assignment where no power was reserved in the insured to change the beneficiary, pledge or assign the policy or assignment, without the beneficiary’s consent, even though by the terms of the policy or assignment, if such beneficiary had not survived the decedent, the proceeds would have gone to the insured’s estate. Justice Sutherland’s opinion relied on Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, where the corpus of trusts created by a settlor inter vivos Was held not to be taxable as a transfer “intended to take effect in possession ,or enjoyment at or after his death.” In each case there was a reversionary interest reserved to the settlor in case the beneficiary died before him. But the decisions in Helvering v. St. Louis Union Trust Co. and Becker v. St. Louis Union Trust Co. were overruled in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, and Bingham v. United States must fall with them. In Helvering v. Hallock the court was not dealing with an insurance policy but with trusts in which the settlor retained a reversionary interest which terminated with his death like that in the St. Louis Trust" }, { "docid": "11860161", "title": "", "text": "determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States— ****** “(d) Revocable transfers * % * * * if? “(2) Transfers on or prior to June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death * * * We think this case is controlled by the decision of the Supreme Court in Commissioner v. Estate of Holmes, 1946, 326 U.S. 480, 66 S.Ct. 257, 90 L.Ed. 228, and our decision in Mellon v. Driscoll, 3 Cir., 1941, 117 F.2d 477, certiorari denied 313 U.S. 579, 61 S.Ct. 1100, 85 L.Ed. 1536. In the Holmes case, the settlor, by a single trust indenture, created for each of his three sons an irrevocable trust, which was to continue for 15 years unless terminated earlier by the settlor. Each received a life interest in one-third of the fund. On termination of the trust, each son, if alive, was to receive one-third of the corpus. The share of any deceased son, however, was to be paid to his issue, and on failure of issue to the other two sons, or their surviving issue. The settlor reserved to himself during his lifetime the right to terminate all trusts and distribute the principal to the beneficiaries then entitled to receive it, but he retained no power to revest in himself or his estate any portion of the income or principal. Each son’s enjoyment of the remainder was uncertain in that it depended on his surviving until the termination of the trust. The settlor’s reserved power of termination was thus a power whereby the settlor could at any time not" }, { "docid": "10433880", "title": "", "text": "or revoke when the trust was created. Helvering v. Helmholtz, 296 U.S. 93, 56 S.Ct. 68, 80 L.Ed. 76; Commissioner of Internal Revenue v. Flanders, 2 Cir., 111 F.2d 117. Yet the section may be applied to an earlier transfer when the power is exercisable by the decedent alone. Porter v. Commissioner, supra; Chase Nat. Bank of City of New York v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388; Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397. Here there was a long period after the death of Arthur when the decedent could have alone exercised the power. That is the power which his death cut off and as to that the statute is not retroactive. Adriance v. Higgins, 2 Cir., 113 F.2d 1013. As the decedent relinquished whatever power he then had to alter, amend or revoke the second trust in 1936 less than five months before his death, no question arises as to the effect of the extinction of any power by death. The Commissioner, however, contends that the power relinquished was one which would have brought the transferred interest into the decedent’s gross estate had he retained it until his death. He further contends that the relinquishment of it had the same effect which would have flowed from the retention of it until death to the extent provided by the following part of § 302(d) as amended in 1934, 26 U.S.C.A. Int.Rev.Acts, page 759: “(3) The relinquishment of any such power, not admitted or shown to have been in contemplation of the decedent’s death, made within two years prior to his death without such a consideration and affecting the interest or interests (whether arising from one or more transfers or the creation of one or more trusts) of any one beneficiary of a value or aggregate value, at the time of such death, in excess of $5,000, then, to the extent of such excess, such relinquishment or relinquishments shall, unless shown to the contrary, be deemed to have been made in contemplation" }, { "docid": "10433879", "title": "", "text": "to amend § 302 but to carry out its purpose to make the new section declaratory of existing law. That is the view taken by the treasury. T.R. 80, Art. 20. See, Welch v. Terhune, 1 Cir., 126 F.2d 695. If in the instant trust the word “revoke” had been used instead of the word “terminate,” the power if exercised would have had exactly the same effect. Termination would have revoked not only the life estate provisions but also the suspension of the falling in of the remainders and came, we think, within the statute. Cf. Mellon v. Driscoll, supra. It would be strange, to say the least, if the settlor could reserve the same power by choosing to use the word “terminate” instead of “revoke” and by so doing accomplish what the statute was designed to prevent. See Union Trust Co. of Pittsburgh v. Driscoll, 3 Cir., 138 F.2d 152. Section 302(d) cannot be applied retroactively where the transfer is complete in that the settlor reserved no power in himself alone to alter, amend or revoke when the trust was created. Helvering v. Helmholtz, 296 U.S. 93, 56 S.Ct. 68, 80 L.Ed. 76; Commissioner of Internal Revenue v. Flanders, 2 Cir., 111 F.2d 117. Yet the section may be applied to an earlier transfer when the power is exercisable by the decedent alone. Porter v. Commissioner, supra; Chase Nat. Bank of City of New York v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388; Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397. Here there was a long period after the death of Arthur when the decedent could have alone exercised the power. That is the power which his death cut off and as to that the statute is not retroactive. Adriance v. Higgins, 2 Cir., 113 F.2d 1013. As the decedent relinquished whatever power he then had to alter, amend or revoke the second trust in 1936 less than five months before his death, no question arises as to the effect of the extinction" }, { "docid": "16461864", "title": "", "text": "transfer made before March 4, 1931, may have been revocable. What did Congress do ? It did not say that the property is automatically included in the gross estate because the transfer was revocable on March 4,1931. Rather, it provided that if the transfer was still revocable on October 7, 1949, the release of the power of revocation would be subject to a gift tax and may be considered made in contemplation of death. Thus, if the power was released and was not released in contemplation of death, and no other ground existed for inclusion, the property would clearly be excluded from the gross estate. This proviso has no meaning under the majority opinion, because the property could be included in the gross estate regardless of whether the power was released in contemplation of death. I believe that the decedent falls within one of the purposes of this act, which was designed, inter alia, to give relief to those taxpayers who relied on May v. Heiner, supra, and did not release their life estates. The trust in question was created in 1923. Section 302 (d) of the Revenue Act of 1924, 43 Stat. 253, 304, for the first time specifically provided that a transfer under which the settlor had the power either alone or in conjunction with any person to alter, amend, or revoke would result in the property being included in his gross estate. This provision was not retroactive. Cf. Helvering v. City Bank Farmers Trust Co., 296 U. S. 85; Helvering v. Helmholz, 296 U. S. 93; White v. Poor, 296 U. S. 98. The Supreme Court decided Reinecke v. Northern Trust Co., supra, in 1929. In that case the Court held a transfer under which the settlor retained a life estate and an absolute power to revoke until the date of his death was taxable as one intended to take effect in possession or enjoyment at or after death, and that the Revenue Act of 1921,42 Stat. 227, was not retroactively applied because the transfer was incomplete since the settlor reserved the sole power to revoke until" }, { "docid": "4335943", "title": "", "text": "(5th Cir. 1949), affirming Estate of James E. Frizzell, 9 T.C. 979 (1947). It held that the transfer of property to the trust was complete prior to the death of the settlor and the accumulations, not being part of the property transferred, were not includible in his gross estate. The court rejected the Commissioner’s contention that the transfer of property to the trusts was not complete until the settlor’s death since the statute rendered property transferred taxable in his estate by reason of the settlor’s retained powers to designate who should enjoy the property and his ability to change the enjoyment through retained power to alter or amend. It was the court’s belief that because decedent lacked power to revoke the trust and obtain the corpus and accumulations for his own benefit, then even though the grantor had power to change the beneficiaries or alter enjoyment of the trust property, the accumulations were not taxable to his estate. We are unable to agree with the Seventh Circuit. The federal estate tax is imposed upon the “transfer” of a decedent’s property. Section 2001 Int. Rev. Code of 1954; United States Trust Co. of New York v. Helvering, 307 U.S. 57, 59 S.Ct. 692, 83 L.Ed. 1104 (1939). The tax, however, is imposed not upon the incomplete transfer made when the decedent created the trust, but rather upon the completed transfer made when the decedent, by his death, relinquished the powers which caused the trust to be includible in his estate. Comm’r v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288 (1949); Estate of Sanford v. Comm’r, 308 U.S. 39, 60 S.Ct. 51, 84 L.Ed. 20 (1939). Thus, the reservation by a transferor of the power of revocation renders the transfer incomplete until his death, Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410 (1929), as does the reservation by a settlor of the power to alter and modify the interests of the beneficiaries. Porter v. Commissioner, 288 U.S. 436, 53 S.Ct. 451, 77 L.Ed. 880 (1933); Estate of Daniel Guggenheim, 40 B.T.A." }, { "docid": "3211334", "title": "", "text": "husband if living and to the children if he were not living. The statute is clear and comprehensive. It is sufficient if there is a power in the grantor to alter or amend the trust even if the settlor may make no change for his benefit. Porter v. Commissioner, 288 U. S. 436, 53 S. Ct. 451, 77 L. Ed. 880. We have held that a provision in the trust agreement for a trustee’s consent to a revocation did not void the tax. Witherbee v. Commissioner (C. C. A.) 70 F.(2d) 696. But the Supreme Court held in Reinecke v. Northern Trust Co., 278 U. S. 339, 49 S. Ct. 123, 125, 73 L. Ed. 410, 66 A. L. R. 397, that, where the settlor established two trusts in which he reserved a power of revocation to himself alone, the value of such trusts should be included in the decedent’s gross estate for tax purposes, but that in five trusts where revocation was reserved to the settlor only with the consent of some beneficiary, the corpus of such trusts were not to be included within the decedent’s estate, for taxation purposes. The reason given by the court was that the settlor could effect no change in the beneficial interests in the trust without the consent of the beneficiary, and the court said: “Since the power to revoke or alter was dependent on the consent of the one entitled to the beneficial, and consequently adverse, interest, the trust, for all practical purposes, had passed as completely from any control by decedent which might inure to his own benefit as if the gift had been absolute. * * * The shifting of the economic .interest in the trust property which was the subject of the tax was thus complete as soon as the trust was made. His power to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to" }, { "docid": "13484687", "title": "", "text": "as a unit but had a corpus consisting of miscellaneous assets which could be dealt with in the discretion of the trustees. Both in form and substance the 1928 trust was accordingly something different from the 1924 trust and, therefore, the property rights of the decedent in the 1928 trust which terminated with his death must be adjudged on the basis of that instrument. Section 302 (d) of the Revenue Act of 1926, supra, provides that the value of the gross estate of a decedent shall be determined by including the value at the time of his death of all property of which he has made a transfer “where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, * * The trust instrument created in 1928, after the passage of that act, was in full force and effect at the decedent’s death in 1933 and thereunder the decedent had the right together with his son and daughter and his son-in-law to revoke the trust and upon such revocation he would have been entitled to receive one-half of the corpus. At his death, the decedent’s rights in one-half of the corpus of the trust ended and that part of the corpus passed to members of his family as provided in the trust instrument. The Commissioner included the value of the decedent’s one-half interest in the trust in his gross estate for estate tax purposes. Such action was clearly within the statute. Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 56 S.Ct. 70, 80 L.Ed. 62. The argument of plaintiffs that even if the 1928 trust is considered as a new trust the action of the Commissioner would nevertheless be erroneous for the reason that the decedent was not the settlor of the trust is without merit. When the 1924 trust was terminated, the decedent had the right to receive one-half of its corpus and each of his children was entitled to receive" }, { "docid": "17695923", "title": "", "text": "would result in the property being included in his gross estate. This provision was not retroactive. Cf. Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 56 S.Ct. 70, 80 L.Ed. 62; Helvering v. Helmholz, 296 U.S. 93, 56 S.Ct. 68, 80 L.Ed. 76; White v. Poor, 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed. 80. The Supreme Court decided Reinecke v. Northern Trust Co., supra, in 1929. In that case the Court held a transfer under which the settlor retained a life estate and an absolute power to revoke until the date of his death was taxable as one intended to take effect in possession or enjoyment at or after death, and and that the Revenue Act of 1921, 42 Stat. 227, was not retroactively applied because the transfer was incomplete since the settlor reserved the sole power to revoke until his death, which was after the passage of the act. That case also involved five other trusts wherein the settlor gave a life estate to the beneficiaries with remainders over at or after settlor’s death. In four of the trusts he reserved the power to revoke in conjunction with the individual beneficiary of each of the four trusts. In the fifth trust he reserved the power to revoke in conjunction with a majority of the beneficiaries. The Court held as to these five trusts that since the power to revoke was dependent on the consent of the one or ones having beneficial and therefore adverse interest, the trusts had passed from his control and were complete. The Court stated that the clause “to take effect in possession or enjoyment at or after death” did not include property or interest therein unless such property or interest passed from the possession or enjoyment or control of the donor at his death. This laid the ground work for the May v. Heiner, supra, decision. The Supreme Court decided May v. Heiner, supra, in 1930. In that case the settlor had transferred property in trust under which the income was payable to her husband during his life and upon his decease" }, { "docid": "6622234", "title": "", "text": "of the deed of trust and made it certain that her lawful descendants would take the property in equal shares per stirpes. The power she reserved was not to change the trust provisions in a trivial way, but went right to the heart of them and gave the decedent a substantial though qualified control over the trust property until her death. Such a power to alter or amend the substance of the transfer by trust brought it within the scope of the decision in Porter v. Commissioner, 288 U.S. 436, 53 S.Ct. 451, 77 L.Ed. 880, and justified the inclusion of the property in the gross estate of the decedent. See Dort v. Helvering, 63 App.D.C. 98, 69 F.(2d) 836; Cook v. Commissioner (C.C.A.) 66 F.(2d) 995; Hoblitzelle v. United States (Ct.Cl.) 3 F.Supp. 331. The decedent, having the right to change the economic benefit, had the power to alter within section 302(d) of the 1926 Act even though she could not benefit herself in a pecuniary way by the change. Witherbee v. Commissioner (C.C.A.) 70 F.(2d) 696. She lived several years after,the act took effect and she was on notice of its provisions, retaining the reserved powers when she might have given them up to rid her estate of this tax liability. So there has been no denial of rights under the Fifth Amendment. Porter v. Commissioner (C.C.A.) 60 F.(2d) 673; Witherbee v. Commissioner, supra. Compare, Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 56 S.Ct. 70, 80 L.Ed. -. The distinction between this case and Helvering v. Helmholz, 296 U.S. 93, 56 S.Ct. 68, 80 L.Ed. —, and White v. Poor, 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed. -, lies in the fact that in neither of them was there any power to alter, amend, or revoke within the meaning of section 302(d). As we find it necessary to hold that section 302(d) of the 1926 Act applies, it is unnecessary to consider the effect of section 302(c). Reversed." }, { "docid": "10433886", "title": "", "text": "on that subject. She admitted, however, that she had filed an affidavit in the Bureau of Internal Revenue in which she had sworn that, “The decedent renounced the power in July, 1936, principally because of his concern that possible changes in income tax laws or regulations or court decisions might make the income of the trust taxable to him.” She explained that she had put this into her affidavit as a result of discussions with her attorneys and knew nothing about it except from them, her husband’s concern over her having the power to make future decisions as to the welfare of her parents being uppermost in her mind when she made the affidavit. There was, indeed, little evidence to show whether the decedent was prompted to act as he did by considerations pertaining to a continuance of his life or those pertaining to the possible effect of his death. The Tax Court noted that in the previous November the Supreme Court had held in Helvering v. City Bank Co., 296 U.S. 85, 56 S.Ct. 70, 80 L.Ed. 62, that a power to revoke a transfer in trust, which was exercisable by the settlor only with the consent of another who was a beneficiary, was within § 302(d) provided the transfer was made after the enactment of the statute. It reasonably inferred that it \"seems more than probable that decedent was thereafter advised by counsel that he should surrender his power of revocation entirely and that the 1936 amendment was the result of taking this advice.” The Tax Court also doubted, as its opinion shows, that the decedent was primarily concerned in making the change in 1936 with the welfare of his parents-in-law whose life estates had previously been held for decedent’s life or until the surviving parent-in-law died. The change made them terminate in less than 39 months provided the daughter Marion survived that period. Its conclusion that under all the circumstances the relinquishment of the power, made without consideration in money’s worth within two years of his death, should be deemed to have been made in contemplation of" }, { "docid": "8920959", "title": "", "text": "47, 48, 60 S.Ct. 51, 84 L.Ed. 20. We do not understand that the court in the Sanford case intended to establish the sweeping rule that a transfer inter vivos is never subject to the gift tax if notwithstanding such transfer the property is still includible in the donor’s gross estate for purposes of the estate tax. See Commissioner v. Marshall, 2 Cir., 1942, 125 F.2d 943, 947, 948; Helvering, Commissioner, v. Robinette, 3 Cir., March 23, 1942, 129 F.2d 832. In several instances, for reasons of policy, Congress has imposed an estate tax upon property of which the decedent had during his lifetime made a completed transfer by way of gift. One such instance, which the court specifically mentioned in the Sanford case, 308 U.S. page 45, 60 S.Ct. 51, 84 L.Ed. 20, is a gift in contemplation of death. Another such instance was presented in Commissioner v. Prouty, 1 Cir., 1940, 115 F.2d 331, where the donor-settlor of a trust reserved the power of revocation in conjunction with a person having a substantial adverse interest. Such a transfer has been recognized by the Supreme Court as a completed gift inter vivos. Reinecke v. Northern Trust Co., 1929, 278 U.S. 339, 346, 347, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397; Helvering v. City Bank Farmers Trust Co., 1935, 296 U.S. 85, 90, 56 S.Ct. 70, 80 L.Ed. 62. As we pointed out in the Prouty case,’ the legislative history of the gift tax indicates clearly that such a transfer in trust is subject to the gift tax, even though the property so transferred is still includible in the donor’s gross estate for purposes of the estate tax See Paul, Federal Estate and Gift Taxation (1942) § 17.09; Warren,, supra, pp. 31-32. Another example of the same sort is an inter vivos transfer in trust, reserving the net income for life to the settlor, with an irrevocable remaindei to another. This is no doubt a completed gift of the remainder interest, as the Supreme Court has recognized, May v. Heiner, 1930, 281 U.S. 238, 244, 50 S.Ct. 286," }, { "docid": "10433887", "title": "", "text": "70, 80 L.Ed. 62, that a power to revoke a transfer in trust, which was exercisable by the settlor only with the consent of another who was a beneficiary, was within § 302(d) provided the transfer was made after the enactment of the statute. It reasonably inferred that it \"seems more than probable that decedent was thereafter advised by counsel that he should surrender his power of revocation entirely and that the 1936 amendment was the result of taking this advice.” The Tax Court also doubted, as its opinion shows, that the decedent was primarily concerned in making the change in 1936 with the welfare of his parents-in-law whose life estates had previously been held for decedent’s life or until the surviving parent-in-law died. The change made them terminate in less than 39 months provided the daughter Marion survived that period. Its conclusion that under all the circumstances the relinquishment of the power, made without consideration in money’s worth within two years of his death, should be deemed to have been made in contemplation of death because the contrary had not been shown cannot, therefore, be held erroneous as a matter of law. Colorado Nat. Bank v. Commissioner of Internal Revenue, 305 U.S. 23, 59 S.Ct. 48, 83 L.Ed. 20; Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. Had decedent merely desired to let his wife make the decisions as trustee respecting the welfare of her parents he needed only to defer to her wishes in that respect. The relinquishment of the power did nothing to accomplish that avowed purpose except to make it impossible for the decedent in the future to act as trustee contrary to his wife’s desires, a possibility, of course, but with nothing in this record to show that such a motive was behind the renunciation. Yet while acquiescence in his wife’s control of the trust was all that was needed to bring about the result the executors now contend he then intended, such acquiescence would have had no effect upon taxes. To aid him or his estate tax-wise" }, { "docid": "16871253", "title": "", "text": "trustees and beneficiaries forbear from exercising this power of amendment under Article Sixteenth, it seems to be only another kind of requirement for the concurrence of other persons, which the Congress has made irrelevant. See Helvering v. City Bank Farmers Trust Co., 1935, 296 U.S. 85, 90, 56 S.Ct. 70, 80 L.Ed. 62. A second argument by appellants to avoid the effect of this two-step power in the grantor is that such power was not “reserved” by the grantor, citing White v. Poor, 1935, 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed. 80. In Welch v. Terhune, 126 F.2d 695, at page 698, we explained the decision of the Supreme Court in White v. Poor as follows: “White v. Poor, 1935, 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed. 80, was a peculiar case. There the settlor conveyed property to three trustees, one of whom was herself. It was provided that the trust might be terminated at any time either in whole or in part ‘by the person or persons who shall then be trustees hereunder’. A year later the settlor resigned as trustee and her daughter was appointed to fill the vacancy. Afterwards the daughter resigned and the settlor was reappointed trustee under a clause of the trust instrument providing that vacancies could be filled by the remaining trustees with the approval of the beneficiaries. The settlor then continued as a trustee until her death. One of the alternative grounds upon which the majority opinion was rested was that the power which the settlor had at the date of her death did not fall within the terms of § 302(d) of the applicable Revenue Act of 1926. The significant and distinguishing fact in the case was, that when the settlor resigned as trustee she thereby cut the last thread of power which she held over the various property interests created by the trust instrument. The reacquired power she had at her death was not a power retained by her in the original declaration of trust but was given to her ‘solely by virtue of the action of the other" }, { "docid": "17695922", "title": "", "text": "of the power of revocation would be subject to a gift tax and may be considered made in contemplation of death. Thus, if the power was released and was not released in contemplation of death, and no other ground existed for inclusion, the property would clearly be excluded from the gross estate. This proviso has no meaning under the majority opinion, because the property could be included in the gross estate regardless of whether the power was released in contemplation of death. I believe that the decedent falls within one of the purposes of this act, which was designed, inter alia, to give relief to those taxpayers who relied on May v. Heiner, supra, and did not release their life estates. The trust in question was created in 1923. Section 302(d) of the Revenue Act of 1924, 43 Stat. 253, 304, 26 U.S.C.A. Int.Rev.Acts, page 67, for the first time specifically provided that a transfer under which the settlor had the power either alone or in conjunction with any person to alter, amend, or revoke would result in the property being included in his gross estate. This provision was not retroactive. Cf. Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 56 S.Ct. 70, 80 L.Ed. 62; Helvering v. Helmholz, 296 U.S. 93, 56 S.Ct. 68, 80 L.Ed. 76; White v. Poor, 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed. 80. The Supreme Court decided Reinecke v. Northern Trust Co., supra, in 1929. In that case the Court held a transfer under which the settlor retained a life estate and an absolute power to revoke until the date of his death was taxable as one intended to take effect in possession or enjoyment at or after death, and and that the Revenue Act of 1921, 42 Stat. 227, was not retroactively applied because the transfer was incomplete since the settlor reserved the sole power to revoke until his death, which was after the passage of the act. That case also involved five other trusts wherein the settlor gave a life estate to the beneficiaries with remainders over at or" }, { "docid": "16461865", "title": "", "text": "trust in question was created in 1923. Section 302 (d) of the Revenue Act of 1924, 43 Stat. 253, 304, for the first time specifically provided that a transfer under which the settlor had the power either alone or in conjunction with any person to alter, amend, or revoke would result in the property being included in his gross estate. This provision was not retroactive. Cf. Helvering v. City Bank Farmers Trust Co., 296 U. S. 85; Helvering v. Helmholz, 296 U. S. 93; White v. Poor, 296 U. S. 98. The Supreme Court decided Reinecke v. Northern Trust Co., supra, in 1929. In that case the Court held a transfer under which the settlor retained a life estate and an absolute power to revoke until the date of his death was taxable as one intended to take effect in possession or enjoyment at or after death, and that the Revenue Act of 1921,42 Stat. 227, was not retroactively applied because the transfer was incomplete since the settlor reserved the sole power to revoke until his death, which was after the passage of the act. That case also involved five other trusts wherein the settlor gave a life estate to the beneficiaries with remainders over at or after settlor’s death. In four of the trusts he reserved the power to revoke in conjunction with the individual beneficiary of each of the four trusts. In the fifth trust he reserved the power to revoke in conjunction with a majority of the beneficiaries. The Court held as to these five trusts that since the power to revoke was dependent on the consent of the one or ones having beneficial and therefore adverse interest, the trusts had passed from his control and were complete. The Court stated that the clause “to take effect in possession or enjoyment at or after death” did not include property or interest therein unless such property or interest passed from the possession or enjoyment or control of the donor at his death. This laid the ground work for the May v. Reiner, sufra, decision. The Supreme Court decided" }, { "docid": "17113848", "title": "", "text": "70 L.Ed. 285; Gillis v. Welch, 9 Cir., 80 F.2d 165. In changing the form of ownership from community to tenancy in common the wife acquired a present interest where she had only an expectancy before, and to that extent there was a transfer of an interest by the decedent. Inasmuch as the case must be remanded to determine how much of the property involved was pre-1927 community property, we must dispose of petitioner’s contentions that the transaction was not one in contemplation of death and that the decedent received full and adequate consideration. The first contention is that the evidence does not support such a finding. We hold that the evidence does support the finding that the agreement was made in contemplation of death. Although when the agreement was made the deceased was only 56 years of age and in apparent good health, the evidence shows without a doubt that the agreement was made solely in order to minimize estate taxes in the event the husband died first. It is contended that this is not sufficient by itself to make section 811(c) applicable. Petitioner relies on Allen v. Trust Co. of Georgia, 326 U.S. 630, 66 S.Ct. 389, 90 L.Ed. 367, to support this proposition. The facts in that case were unique and not similar to the instant case. There a power to amend a trust was' relinquished by the settlor admittedly to avoid the inclusion of the trusts in his gross estate, but the lower court found, and the Circuit Court of Appeals affirmed, that the original trusts which had been created many years before had not been created in contemplation of death and that the relinquishment of the power to amend was made because of a change in the law after the trusts had been created. The Supreme Court held that the relinquishment was a supplementary step in an integrated transaction which was not one in contemplation of death. In the present case the agreement is the entire transaction solely to avoid taxes, not merely a step to perfect a prior disposition of the property. The motive" }, { "docid": "10433874", "title": "", "text": "and conditions whatsoever in respect to the amount of income thereafter to be paid or the circumstances under which any income should be payable was only a power exercisable in favor of the life beneficiary and did “not include the power to take any income away from her.” It plainly gave the settlors the power to reduce the amount at least to a mere nominal sum, if not to zero, and make that pay able only as they saw fit. It is immaterial under the statute that during the life of Arthur the decedent could act only in concert with him; and, moreover, during the period between Arthur’s death in 1927 and that of the decedent in 1936 the latter could have exercised the power alone. His death ■ended the possibility of the exercise of that power to deprive the life beneficiary of the value of her interest and made its then value includible in the decedent’s gross estate. Commissioner of Internal Revenue v. Bridgeport City Trust Co., 2 Cir., 124 F. 2d 48, certiorari denied, 316 U.S. 672, 62 S.Ct. 1042, 86 L.Ed. 1747; Commissioner of Internal Revenue v. Chase National Bank, 2 Cir., 82 F.2d 157, certiorari denied 299 U.S. 552, 57 S.Ct. 15, 81 L.Ed. 407. See also Porter v. Commissioner of Internal Revenue, 288 U.S. 436, 53 S.Ct. 451, 77 L.Ed. 880; Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 56 S.Ct. 70, 80 L.Ed. 62. The Tax Court held, however, that the remainder interests were not includible because no power to alter the remaindermen was reserved. It is true that they could not directly be changed and that in respect to them the exercise of the power to terminate the trusts would but accelerate the date of distribution. Whether that would make a difference in the identity of the takers could not be known before the decedent died since it could not before then be known whether they would be the same, whenever he might terminate the trust, as they would be at his death. This power to accelerate was not only the" } ]

[ { "docid": "22324626", "title": "", "text": "Justice Souter delivered the opinion of the Court. The United States brought this action for the costs of cleaning up industrial waste generated by a chemical plant. The issue before us, under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as amended, 42 U. S. C. §9601 et seq., is whether a parent corporation that actively participated in, and exercised control over, the operations of a subsidiary may, without more, be held liable as an operator of a polluting facility owned or operated by the subsidiary. We answer no, unless the corporate veil may be pierced. But a corporate parent that actively participated in, and exercised control over, the operations of the facility itself may be held directly liable in its own right as an operator of the facility. I In 1980, CERCLA was enacted in response to the serious environmental and health risks posed by industrial pollution. See Exxon Corp. v. Hunt, 475 U. S. 355, 358-359 (1986). “As its name implies, CERCLA is a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites.” Key Tronic Corp. v. United States, 511 U. S. 809, 814 (1994). If it satisfies certain statutory conditions, the United States may, for instance, use the “Hazardous Substance Superfimd” to finance cleanup efforts, see 42 U. S. C. §§ 9601(11), 9604; 26 U. S. C. § 9507, which it may then replenish by suits brought under § 107 of the Act against, among others, “any person who at the time of disposal of any hazardous substance owned or operated any facility.” 42 U. S. C. § 9607(a)(2). So, those actually “responsible for any damage, environmental harm, or injury from chemical poi sons [may be tagged with] the cost of their actions,” S. Rep. No. 96-848, p. 13 (1980). The term “person” is defined in CERCLA to include corporations and other business organizations, see 42 U. S. C. § 9601(21), and the term “facility” enjoys a broad and detailed definition as well, see §9601(9). The phrase “owner or" } ]

[ { "docid": "19276125", "title": "", "text": "contribution claim is asserted falls within section 107(a)’s four categories of “covered persons”; (2) that there was a “release” or threatened release of hazardous substances; (3) that the release or threatened release occurred at a “facility”; (4) that the party asserting the contribution claim incurred response costs related to the release; and (5) that the response action or cleanup is consistent with the NCP. See, e.g., United States v. Sensient Colors, Inc., 580 F.Supp.2d 369, 375-76 (D.N.J.2008) (citing PPG Industries, 197 F.3d at 103-04); Goodrich, 311 F.3d at 168; Morrison, 302 F.3d at 1135-36. For the following reasons, the Court holds, under the first step of the section 113(f) inquiry, that Alumax is a liable party under section 107(a). First, the undisputed facts of record establish that Alumax is a “covered person” under section 107(a). Under CERCLA, “covered persons” include “any person who by contract ... arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned ... by such person, by any other party or entity, at any facility ... owned or operated by another party or entity and containing such hazardous substances.” 42 U.S.C. § 9607(a)(3). There is no dispute among the parties that Howmet contracted with Jonas for the disposal of its Lancaster facility’s hot mill waste at the Helen Kramer Landfill. (Stipulation ¶¶ 4-6.) There is likewise no dispute that this waste contained hazardous substances that were found in high concentrations at the Landfill, including copper and zinc. (Third-Party Plaintiffs’ Br. Ex. 3 ¶ 1.) Finally, Alumax does not deny that it is the successor entity to Howmet. See United States v. General Battery Corp., Inc., 423 F.3d 294, 298 (3d Cir.2005) (noting that “it is now settled that CERCLA incorporates common law principles of indirect corporate liability, including successor liability”). The record likewise is sufficient to demonstrate as a matter of law that Alumax is responsible for the “release” of hazardous substances at a “facility.” As the Court noted, supra, Howmet contracted for the disposal of hazardous substance-containing waste at the Landfill. Alumax does not appear" }, { "docid": "16659577", "title": "", "text": "this title may also recover its reasonable costs of response to the extent that it can demonstrate, on the administrative record, that the President's decision in selecting the response action ordered was arbitrary and capricious or was otherwise not in accordance with law.... 42 U.S.C. § 9606(b). . In fact, EPA may even reimburse a party who may be liable, since under section 122(a), EPA may enter into an agreement with any party to cleanup a hazardous waste site (including the owner or operator of the site) and under section 122(b) agree in advance to reimburse that party for its costs. 42 U.S.C. §§ 9622(a), (b)(1). . When EPA grants reimbursement under section 106(a) because it believes that a claimant is not liable it does, as the government points out, make a determination as to liability, but that determination does not bind — indeed it has no effect on — a district court in an action brought against the claimant by a third party under section 107. And, after all, EPA can reimburse a party based on reasons other than non-liability. See 42 U.S.C. §§ 9606(b)(2)(A), 9622(b)(1). . Likewise, subparagraph (b)(2)(A)’s “receives and complies” provision at issue in Wagner Seed has relevance only to the party seeking reimbursement and the government and, therefore, does not impinge upon a third party’s private right of action under section 107. See Wagner Seed, 946 F.2d at 923. . EPA may well be brought into such an action as a third party and, of course, its litigator’s view would be entitled to the same respect that a court would give any litigant. That is not \"deference.” MIKVA, Chief Judge, dissenting: The Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., subjects four classes of parties to potential liability for hazardous waste cleanup costs: (1) the current owner and operator of a facility where hazardous substances are located; (2) any person who owned or operated the facility at the time of disposal of hazardous substances; (3) any person who arranged for the disposal of hazardous substances; and (4) any person" }, { "docid": "23238980", "title": "", "text": "principal goal of Section 113 was to ‘clar-if[y] and eonfirm[] the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances.’ ” New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1122 (3d Cir.1997) (quoting H.R.Rep. No. 99-253(1), at 79 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2861; H.R. Conf. Rep. No. 99-962, at 221 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3314). Accordingly, CERCLA and SARA together create two legal actions by which parties that have incurred costs associated with cleanups can recover some or all of those costs: (1) Section 107 cost recovery actions; and (2) Section 113 contribution actions. Section 113, the cause of action Morton is pursuing against Tenneco, provides that “[a]ny person may seek contribution from any other person who is hable or potentially liable under [Section 107], during or following any civil action under [Section 107],..42 U.S.C. § 9613(f)(1). Section 107 defines those who are “potentially responsible persons” (“PRP’s”) as: (1) the current owner or operator of a facility; (2) any person who owned or operated the facility at the time of the disposal of any hazardous substances; (3) “any person who by contract, agreement, or otherwise arranged for disposal or treatment ... of hazardous substances owned or possessed by such person, by any other party ... at any facility;” and (4) any person who accepts or accepted hazardous substances for transport to sites selected by such person, “from which there is a release, or a threatened release which causes the incurrence of response costs....” 42 U.S.C. § 9607(a). Congress did not define the term “arranged for” in the statute. Thus, our interpretation of the term begins with the plain meaning. To repeat, Section 107(a)(3) holds responsible those who “by contract, agreement, or otherwise arranged for” the disposal or treatment of hazardous substances. The verb “arrange” is defined (as relevant to its usage in this section) as “to make preparations" }, { "docid": "16107386", "title": "", "text": "with Cordova/California additionally subjects MDNR to liability under CERCLA. CPC calculates that it incurred approximately $4,537,537.00 in response costs in connection with cleanup operations conducted at the Site. IV. DISCUSSION The elements of a prima facie case under CERCLA are: (1) the Site is a “facility;” (2) a “release” or “threatened release” occurred at the Site; (3) the release caused plaintiff to incur response costs; and (4) defendants are responsible persons under CERCLA, 42 U.S.C. § 9607(a). United States v. Aceto Agr. Chemicals Corp., 872 F.2d 1373 (8th Cir.1989); United States v. Bliss, 667 F.Supp. 1298 (E.D.Mo.1987). MDNR only disputes the fourth element, insisting that it is not included in any of the four categories circumscribed by Congress. CERCLA defines the class of potential defendants as: (1) the owner and operator of a vessel or a facility; (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of; (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance ... 42 U.S.C. § 9607(a) Plaintiff argues that MDNR's activities at the Site qualify it as an “operator” under CERCLA, and therefore liable under either section 107(a)(1) or 107(a)(2). 42 U.S.C. § 9607(a)(1)-(2). Additionally, plaintiff alleges that the agreement with Cordo-va/California involving the disposal of phosgene and operation of purge wells subjects MDNR to liability under section 107(a)(3). 42 U.S.C. § 9607(a)(3). I will address each of these claims separately. A. Liability under CERCLA section 107(a)(1): MDNR is clearly not a" }, { "docid": "495513", "title": "", "text": "sites. Among other things, CERCLA provides a cause of action to recover “response costs” incurred in remedying an environmental hazard, 42 U.S.C. § 9607, and allows those liable for response costs to seek contribution from other liable parties, id. § 9613(f). A plaintiff must meet four elements to establish CERCLA liability: (1) that hazardous substances were disposed of at a “facility”; (2) that there has been a “release” or “threatened release” of hazardous substances from the facility into the environment; (3) that the release or threatened release has required or will require the expenditure of “response costs”; and (4) that the defendant falls within one of four categories of responsible parties. Id. § 9607(a); see United States v. Alcan Aluminum Corp., 964 F.2d 252, 258-59 (3d Cir.1992). If these requirements are met, responsible parties are liable for response costs regardless of their intent. See id. at 259 (“CERCLA imposes strict liability on responsible parties.”). The parties agree that the first three requirements are met. Their dispute con- eerns whether Dowel is a responsible party. CERCLA makes four classes of people liable for response costs or contribution: the current owner or operator of a facility, 42 U.S.C. § 9607(a)(1); any person who owned or operated the facility “at the time of disposal” of a hazardous substance, id. § 9607(a)(2); any person who arranged for disposal or treatment, or arranged for transport for disposal or treatment of hazardous substances at the facility, id. § 9607(a)(3); and any person who accepts or accepted hazardous substances for transport to sites selected by such person, id. § 9607(a)(4). HMAT contends that Dowel is liable as a person who owned or operated the facility “at the time of disposal” of a hazardous substance. CERCLA defines “disposal” by incorporating the definition used by the Resource Conservation and Recovery Act (RCRA). See id. § 9601(29) (“The terms ‘disposal’, ‘hazardous waste’, and ‘treatment’ shall have the meaning provided in section 1004 of the Solid Waste Disposal Act.”). Under RCRA, The term “disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste" }, { "docid": "6734204", "title": "", "text": "decided to sell the land instead. Finally, in 1997 the purchase and sale agreement was finalized and ownership transferred to Union. Union is now suing PSE under section 107 of CERCLA under a theory of joint and several liability for the actions of PSE’s alleged corporate predecessors. The causes of action at issue in this motion involve ones for cost recovery, not contribution. In other words, Union is suing PSE for the entire cost of any environmental cleanup/containment incurred at the site. ANALYSIS PSE moves for partial summary judgment on two causes of action, one under Section 107 of CERCLA, and one under RCW 70.105D.040 of the MTCA. Both involve actions for cost recovery under a theory of joint and several liability. PSE’s contention is that both acts limit recovery among “potentially responsible persons”/ “potentially liable persons” (“PRP”/“PLP”) to contribution actions. Because Union is itself is a PRP/PLP, PSE argues, it can only sue for contribution, and its cost recovery actions should be dismissed. In the CERCLA action, Union proposes a judicially-created exception for non-polluting PRPs, as recognized in the Seventh Circuit. In the MTCA action, Union claims that the act allows for joint and several liability, while PSE points to language in the statute that directs liability to be apportioned using “equitable factors.” Each act will be discussed in turn. The CERCLA claim “CERCLA was enacted to protect and preserve public health and the environment by facilitating the expeditious and efficient cleanup of hazardous waste sites. Pritikin v. Dep’t of Energy, 254 F.3d 791, 794-95 (9th Cir.2001). But CERCLA also has a secondary purpose — “assuring that “responsible” persons pay for the cleanup.” Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 880 (9th Cir.2002). Section 107 of CERCLA defines “covered parties,” otherwise know as “potentially responsible parties” (“PRPs”), as: (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for" }, { "docid": "8253547", "title": "", "text": "question often debated, and occasionally misunderstood, by the parties in this case: namely, their respective burdens of proof. As an initial matter, each party bears the burden of showing that its opponent is liable under the terms of § 107(a). Yankee Gas must do this because it brings its claim under that Section, while UGI has the same burden because the language in § 113 allows for contributions only from “any other person who is liable or potentially liable under section 9607(a) of this title,” 42 U.S.C. § 9613(f)(1). Establishing CERCLA liability is not a difficult task, however. Notably, it does not require that “a specific defendant’s waste cause incurrence of clean-up costs.” United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d Cir.1993). As the Second Circuit has said, “[t]he traditional tort concept of causation plays little or no role in the liability scheme.” Instead, CERCLA requires a plaintiff to establish: (1) defendant fits one of the four classes of responsible parties outlined in § 9607(a); (2) the site is a facility; (3) there is a release or threatened release of hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or threatened release; and (5) the costs and response actions conform to the National Contingency Plan set up under the Act and administered by the EPA in order to prioritize hazardous substance release sites throughout the nation. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992) (“Goodrich II”). The two (of four) “classes of responsible parties” that are relevant in the present case are “the owner and operator of ... a facility,” 42 U.S.C. § 9607(a)(1), and “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,” 42 U.S.C. § 9607(a)(2). Once liability is established, the question is how to allocate that liability. Here the burdens of proof become more complicated. Yankee Gas has argued that UGI “bears the burden of proof for allocation or apportionment in a cost recovery action.” PL’s Pretrial Br. [doc. #" }, { "docid": "22985953", "title": "", "text": "Co., 50 F.3d 1530, 1536 (10th Cir.1995); United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 100 (1st Cir.1994); Akzo Coatings, 30 F.3d at 764, but also gives CERCLA its full intended effect. In contrast to § 113(f)(1), which apportions liability based on equitable considerations and has a three-year statute of limitations, see 42 U.S.C. § 9613(g)(3), § 107(a) has a six-year statute of limitations, see 42 U.S.C. § 9613(g)(2). Were we to permit a potentially responsible person to elect recovery under either § 107(a) or § 113(f)(1), § 113(f)(1) would be rendered meaningless. See New Castle, 111 F.3d at 1122-23; United Technologies, 33 F.3d at 100-01. A recovering liable party would readily abandon a § 113(f)(1) suit in favor of the substantially more generous provisions of § 107(a). We decline to interpret § 107(a) so broadly that § 113(f)(1) would become a nullity. See Shore Realty, 759 F.2d at 1044 (“Without a clear congressional command otherwise, we will not construe a statute in any way that makes some of its provisions surplusage.”). The language of CERCLA suggests Congress planned that an innocent party be able to sue for full recovery of its costs, ie., indemnity under § 107(a), while a party that is itself liable may recover only those costs exceeding its pro rata share of the entire cleanup expenditure, ie., contribution under § 113(f)(1). B. May Bedford Proceed With a § 107(a) Action As an Innocent Oumer ? The district court held Bedford Hable for five percent of its response costs due to its past and present ownership of the Site. This holding has a sound basis in the statute. See CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2) (defining a potentially responsible person to include “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of’); see also CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1) (imposing strict liability on present owners of facilities). Nevertheless, Bed-ford stresses it did not actually cause the contamination at the Site and therefore concludes we should permit it" }, { "docid": "13029900", "title": "", "text": "second, that it is immune from the common law contribution or indemnification action by the doctrine of sovereign immunity, and at any rate, its decisions with respect to the sites are “discretionary acts,” and lastly, that the State cannot be forced to abide by its regulations. I. CONTRIBUTION/INDEMNIFICATION UNDER CERCLA Section 9613(f)(1) of Title 42 of the United States Code provides “[a]ny person may seek contribution from any other person who is liable or potentially liable under section 107(a) [42 U.S.C. § 9607(a)], during or following any civil action under section 106 [42 U.S.C. § 9606] or under section 107(a).” In order for the State to be liable under § 9607(a), the State must be either (1) the owner and operator of a vessel or a facility; (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of; (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treat ment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances; [or] (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance ... Defendant claims that the State is a responsible party under § 9607(a)(3), arguing that the State “otherwise arranged for” disposal of hazardous substances, in that the State either permitted or directed waste to be placed in the facilities. To establish liability under § 9607(a)(3), it must be shown, inter alia, that the State owned or possessed the hazardous substances of which it arranged to dispose. C. Greene Equipment Corp. v. Electron Corp., 697 F.Supp. 983, 986 (N.D.Ill.1988); United States v. Ward, 618 F.Supp. 884, 893 (E.D.N.C.1985). Defendant cites United" }, { "docid": "22090511", "title": "", "text": "did not have successor liability for USC’s environmental obligations under any exception to the general rule that a corporate purchaser of another corporation’s assets does not become liable for the selling corporation’s liabilities. 814 F.Supp. 624. This timely appeal by the Metamora Settling Defendants and the Peripheral Defendants followed. II. A. Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper “if the pleadings, deposition, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). This court reviews a district court’s grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). On appeal, we must consider all facts and inferences drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). We are guided by this court’s decision in Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). With these general principles in mind, we now turn to the substantive law governing plaintiffs claims. Defendants argue that the district court erred in determining that plaintiff is not liable as a successor for USC’s CERCLA liabilities. CERCLA § 107(a) imposes liability for response costs arising from actual or threatened releases of hazardous substances upon four classes of “covered persons:” (1) current owners or operators of a facility at which hazardous substances were disposed; (2) any person who owned or operated a facility at the time of disposal of a hazardous substance; (3) any person who arranged for disposal, or arranged for transport for disposal, of a hazardous substance at a facility, also known as “generators;”" }, { "docid": "5714738", "title": "", "text": "the “orphan share” will be admissible at trial. C. Analysis The Direct Defendants’ motion requires the court to analyze the interplay between the two primary liability provisions of the CERCLA statute: section 107(a) and section 113(f)(1). Section 107(a) imposes joint and several liability on four classes of responsible parties for landfill cleanup costs incurred by the United States: 1) the owner and operator of the facility; 2) any person who owned or operated the facility at the time of disposal of any hazardous substance; 3) any person who by contract, agreement or otherwise arranged for disposal or treatment of hazardous substances owned or possessed by that person; and 4) any person who accepted any hazardous substances for transport to disposal or treatment facilities selected by that person. Kramer, 757 F.Supp. at 410-411 (citing 42 U.S.C. § 9607(a)(l)-(4)). Section 113(f)(1) of CERCLA permits those parties sued by the United States to seek contribution from other PRP’s. That provision states: “Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title.” 42 U.S.C. § 9613(f). Congress included this contribution provision in the CERCLA statute to “compensate for the potentially unfair burden that section 107 joint and strict liability might impose on named PRP’s, when other PRP’s have not been named in an action brought by the government under that section.” Kramer, 757 F.Supp. at 412. Section 113(f)(1) further provides that “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(1). As a preliminary matter, there can be no serious dispute that the federal court; in the adjudication of equitable apportionment of liability under section 113(f)(1), enjoys broad discretion to consider and apply such equitable factors as it deems appropriate to achieve a just and fair allocation among liable parties. SC Holdings, Inc. v. A.A.A. Realty Co., 935 F.Supp. 1354, 1373 (D.N.J.1996); United States v. Cannons Eng’g" }, { "docid": "20877295", "title": "", "text": "and (a)(4). Section 113(f) of CERCLA provides for contribution among parties deemed liable under section 107(a), with response costs to be allocated among such parties “using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(1). Section 107(a) defines the following as liable parties: (1) owners and operators of a facility at the time of its cleanup; (2) owners and operators of the facility at the time of disposal; (3) generators of waste who arranged for disposal; and (4) transporters who selected the site for disposal. 42 U.S.C. § 9607(a)(1) — (4). In its unpublished September 20, 1990 Memorandum Opinion and Order following the trial, the district court ruled that AMI was entitled to recover the entire amount of the clean-up costs because it was not a liable party under any of these four categories, whereas defendants were liable under the first two, as present owners of the facility and owners at the time of waste disposal. Defendants do not dispute the finding that they are liable parties, but argue that AMI is liable as well, under the third category: “[A]ny person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person ... at any facility....” 42 U.S.C. § 9607(a)(3). De fendants assert that AMI owned the chemicals creating the hazard because the written asset sale contract between IFE and AMI does not list these substances among the assets sold to IFE. Defendants argue that the only evidence supporting a finding that ownership was transferred is parol evidence, which may not be used to contradict or add terms to an unambiguous written contract. They therefore contend that AMI abandoned these chemicals when it left the Babbit Road facility in 1982. Defendants cite case law from another jurisdiction for the proposition that the owner of hazardous substances remains liable, under federal statutory environmental schemes, for damage caused by hazardous substances it abandons. Accordingly, under Ohio law, the release was not valid to bar AMI’s CERCLA claim against" }, { "docid": "15031945", "title": "", "text": "also allege that CPC should be held liable because Ott II is the successor corporation of Ott I. 2. Section 107(a)(2) “operator” liability a. Parent corporation liability under section 107(a)(2) After studying the statute, prior case law and the critical literature on the subject , it is clear to the court that section 107(a)(2) liability may attach to a parent corporation in two ways. The first basis for liability of a parent corporation is direct liability under the “operator” language of CERCLA’s section 107(a)(2). The second basis for liability is through common law veil-piercing, which may arise in any liability case involving a corporate defendant. In determining that parent corporations may be held directly liable under CERCLA, the court relies on the language of the statute itself. Section 107(a)(2) of CERC-LA holds liable “any person who at the time of disposal of any hazardous substances owned or operated any facility at which such hazardous substances were disposed of.” 42 U.S.C. § 9607(a)(2). The statute defines “owner or operator” circuitously to mean: ... (ii) in the case of an onshore facility ... any person owning or operating such facility, and (iii) in the case of any facility, title or control of which was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a unit of State or local government, any person who owned, operated or otherwise controlled activities at such facility immediately beforehand. Such term does not include a person, who, without participating in the management of a ... facility, holds indicia of ownership primarily to protect his security interest in the ... facility. 42 U.S.C. § 9601(20). Though lacking in specificity, the plain language of CERCLA makes it unmistakably clear that direct liability may attach to parties other than the actual owners of hazardous waste facilities. To hold that actual ownership is mandated by CERC-LA’s liability provisions, a court would have to disregard the express language that makes liable those persons who have owned or operated a contaminated facility. Thus, reading the statute to employ only traditional concepts of ownership and liability through veil-piercing would require a" }, { "docid": "7817229", "title": "", "text": "January 1983, if not all that preceded the stock sale of December 31, 1984. Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2), imposes liability on “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of’. Beatrice fits that bill as the “owner” of the iron works until January 1983, and we shall assume without deciding that as a corporate parent it “operated” the facility until the end of 1984. (Whether the assumption is correct is the question before the Supreme Court in United States v. Bestfoods, No. 97-454, argued Mar. 24, 1998.) But Bullion is not a victim of Beatrice’s pollution; Brillion is the polluter. How can it recover for its own emissions? “Brillion” is just a name. The contracts that make up its business—and corporations are nothing but webs of contracts and related property rights—set the limits of its entitlements. When BeatUce incorporated Brillion in 1983, it contributed both the assets used to run a business and the accumulated liabilities of that business. The new corporation agreed to assume all of Bea-tUce’s obligations. That is to say, at its birth Brillion promised to be satisfied with the assets Beatrice placed in corporate solution, and not to seek anything more from Beatrice later. Alternatively one can understand the transaction as an obligation to indemnify Beatrice for any outlay BeatUce is called on to make, so the money comes full circle and can stay in Beatrice’s pocket rather thán take a pointless journey. Nothing in CERCLA, RCRA, or Wisconsin law says that corporations may disavow such promises. A corporation has no right against its incorporators to be constituted differently than it was, and the liability of equity investors (which Bea-tUce became in 1983) is limited to what they promise to contribute to the venture. Only real people have rights: thus the investors who bought Bullion’s stock from BeatUce may be able to show that the environmental liabilities were misrepresented, and strangers injured by emissions from Brillion’s land may be able to claim compensation from prior owners" }, { "docid": "18896947", "title": "", "text": "judgment in Osmose’s favor. 685 F.Supp. 651 (N.D.Ill.1988). Hines initially sought to recover from its suppliers under state tort law. The district court concluded that Hines’s suit was untimely, 669 F.Supp. 854 (N.D.Ill.1987), and Hines abandoned these claims. Oddly, Hines did not invoke Osmose’s contractual warranty of compliance with all pollution control laws. Hines now wants to recover contribution from Osmose solely under § 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1), a provision added by the Superfund Amendments and Reauthorization Act (SARA), Pub.L. 99-499, 100 Stat. 1613, 1647, in 1986. It provides: Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims ... shall be governed by Federal law. In resolving contribution claims, the court may allocate response [ = cleanup] costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 or section 9607 of this title. Hines may require Osmose to chip in to the decontamination effort only if Osmose is a “person who is liable or potentially liable” under the Act. Osmose’s potential liability arises, if at all, under § 107(a)(2) of CERC-LA, 42 U.S.C. § 9607(a)(2), which provides that (with some defenses and exceptions) “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of” must pay the costs of getting rid of them. So everything turns on whether Osmose “owned or operated” the Mena plant. At this point the statutory chain comes to an end, for § 9601(20)(A)(ii) informs us that “[t]he term ... ‘owner or operator’ means ... in the case of an onshore facility or an offshore facility, any person owning or operating such facility”. This is circular, although it does imply that if Mena is neither" }, { "docid": "9514567", "title": "", "text": "assets and business of the Marietta Division of Marietta-Harmon; and (2) that Goodrich did assume the liabilities of Dyestuffs/Marietta Harmon when it purchased from AHP 100% of the stock of Harmon Color. In its reply memorandum, Cytec argues that because Goodrich failed to present any evidence, or argument, rebutting Cy-tec’s assertions that Dyestuffs/Marietta-Harmon is hable under CERCLA, that portion of Cytec’s motion for summary judgment is uncontested and therefore must be granted. Thus, according to Cy-tec, the only remaining issue for purposes of the instant motion is whether Goodrich is the corporate successor to Harmon Col- or. Goodrich’s failure to respond to Cytec’s motion for partial summary judgment on the issue of the CERCLA liability of Dyestuffs/Marietta-Harmon is discussed infra. B. CERCLA Congress enacted CERCLA to ensure the prompt cleanup of hazardous waste sites and spills by placing the ulti mate financial responsibility for the cleanup on those responsible for the improper release of hazardous waste. See Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 652 (6th Cir.2000) [hereinafter “KRSG”]; Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1241 (6th Cir.1991); James A. King, Kayser-Roth, Joslyn, and the Problem of Parent Corporation Liability Under CERCLA, 25 Akron L.Rev. 123, 125 (1991) (explaining that CERCLA was enacted “to enable both federal and state environmental agencies to begin immediately cleaning up contaminated sites”). CERCLA provides two causes of action for a party to recover the costs incurred as a result of the environmental cleanup effort. See KRSG, 228 F.3d at 652. The first is a cost-recovery action governed by CERCLA § 107(a), codified at 42 U.S.C. § 9607(a), which provides in pertinent part: Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with" }, { "docid": "23680632", "title": "", "text": "setting, does not deprive the district court’s judgment of finality. Therefore, we have jurisdiction to hear this appeal. III. LIABILITY OF ALCOA AND CBI AS “OPERATORS” OF THE ALT FACILITIES Under CERCLA, four types of “covered persons” are held jointly and severally hable as “responsible parties” for the costs of cleaning up hazardous waste sites: (1) owners and operators of vessels or facilities; (2) persons who at the time of disposal of hazardous substances owned or operated a facility where such substances were disposed of; (3) generators of hazardous substances or any person who arranges for their disposal or treatment; and (4) transporters of waste, if they participate in the selection of the disposal site or facility. 42 U.S.C. § 9607(a)(1) to (4). A non-eovered party that incurs clean-up costs can bring a cost recovery action against any responsible party. Id,.; see generally Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996). Responsible parties, while jointly and severally liable for any clean-up costs, may maintain a contribution action against other responsible parties. 42 U.S.C. § 9613(f)(l).“In resolving contribution claims, the court may allocate response costs among hable parties using such equitable factors as the court determines are appropriate.” Id. We must determine whether the district court was correct in finding that Alcoa and CBI are not hable as“operators” of ALT’s wood treatment plants. A corporation may be held hable as an “operator” of facilities owned by another corporation only if the “actual control” standard is satisfied. See Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209 (3d Cir.1993). As we explained in Lansford-Coaldale: Under the actual control standard, a corporation will only be held hable for the environmental violations of another corporation when there is evidence of substantial control exercised by one corporation over the activities of the other____ ... [Wjhile the longstanding rule of limited liability in the corporate context remains the background norm, a corporation cannot hide behind the corporate form to escape liability in those instances in which it played an active role in the management of a corporation responsible for environmental wrongdoing." }, { "docid": "22871118", "title": "", "text": "from contribution suits by PRPs that have inequitably reimbursed the costs incurred by another party. Third, settlement carries the inherent benefit of finally resolving liability as to the United States or a State. Ill Because the plain terms of § 107(a)(4)(B) allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action. We therefore affirm the judgment of the Court of Appeals. It is so ordered. Section 113(f)(1) permits private parties to seek contribution during or following a civil action under §106 or § 107(a). 42 U. S. C. § 9613(f)(1). Section 113(f)(3)(B) permits private parties to seek contribution after they have settled their liability with the Government. § 9613(f)(3)(B). CERCLA § 107(a) lists four broad categories of persons as PRPs, by definition liable to other persons for various costs: “(1) the owner and operator of a vessel or a facility, “(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, “(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and “(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for [various costs].” 42 U. S. C. §§ 9607(a)(1)-(4). “The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency. . . .” Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, n. 2 (2004) (citing 40 CFR pt. 300 (2004)). Congress amended the statute in 2002 to exempt some bona fide prospective purchasers" }, { "docid": "22090512", "title": "", "text": "587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). We are guided by this court’s decision in Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). With these general principles in mind, we now turn to the substantive law governing plaintiffs claims. Defendants argue that the district court erred in determining that plaintiff is not liable as a successor for USC’s CERCLA liabilities. CERCLA § 107(a) imposes liability for response costs arising from actual or threatened releases of hazardous substances upon four classes of “covered persons:” (1) current owners or operators of a facility at which hazardous substances were disposed; (2) any person who owned or operated a facility at the time of disposal of a hazardous substance; (3) any person who arranged for disposal, or arranged for transport for disposal, of a hazardous substance at a facility, also known as “generators;” and (4) any person who accepted hazardous substances for transport for disposal at a facility, also known as “transporters.” See 42 U.S.C. § 9607(a)(l)-(4). This court has held that the term “person,” within the meaning of CERC-LA § 107(a), includes successor corporations. Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1247 (6th Cir.1991). As the district court held and all parties to this appeal acknowledge, the liability of a successor corporation for CERCLA obligations is determined by reference to state corporation law, rather than federal common law. See Anspec, 922 F.2d at 1247. In Anspec, we held that a state’s law on corporations, including that state’s law on mergers and successor liability, applied in determining whether a successor corporation would be liable under CERCLA for cleanup costs. Id. at 1246. In this case, because both plaintiff and USC were incorporated under Michigan law, Michigan corporation law governs in determining whether successor liability exists. Defendants do not challenge the district court’s conclusion that under Michigan law, a purchaser of substantially all of a corporation’s assets," }, { "docid": "5984942", "title": "", "text": "be construed broadly and liberally to effect its purposes, namely, to allow the federal government to respond effectively to “problems of national magnitude resulting from hazardous waste disposal” and to assure that those who profit from hazardous activities “bear the costs and responsibility for remedying the harmful conditions they created.” United States v. Reilly Tar & Chem. Corp., 546 F.Supp. 1100, 1112 (D.Minn.1982). “The statute should not be narrowly interpreted to ... limit the liability of those responsible for cleanup costs beyond the limits expressly provided.” Id. Section 107 of CERCLA, 42 U.S.C. § 9607, defines who are “covered persons” subject to liability under the statute. That section states in pertinent part: “Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section[,] ... any person who at the time of disposal of any hazardous substance owned or operated any facility at which ... hazardous substances were disposed of” shall be liable for cleanup costs. 42 U.S.C. § 9607(a) (emphasis added). Section 101 of CERCLA defines “person” to include a “corporation,” without regard to its current status. 42 U.S.C. § 9601(21). Thus, the express language of the statute “imposes liability on those parties responsible for the release ... of hazardous substances ‘Mot-withstanding any other provision or rule of law.’ ” Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1078 (1st Cir.1986). This court joins those courts that have refused to “interpret section 9607(a) in any way that apparently frustrates the statute’s goals, in the absence of a specific congressional intent otherwise.” Id. at 1081 (quoting New York v. Shore Realty Corp., 759 F.2d 1032, 1045 (2d Cir.1985)). Rather, given CERCLA’s broad remedial purpose and Congress’s expressed intent that those responsible for hazardous waste sites bear the cost of cleaning them up, the court concludes that CERCLA’s language —“any person” who owned or operated a hazardous waste disposal site “shall be liable for” cleanup costs “[notwithstanding any other provision or rule of law”—clearly expresses Congress’s intent to supersede any rule that would otherwise relieve a responsible party" } ]

[ { "docid": "9418370", "title": "", "text": "actionable under Title VII independent of a hostile work environment.” Marrero v. Goya of P.R., Inc., 304 F.3d 7, 21 n. 3 (1st Cir.2002) (quoting Ellerth, 524 U.S. at 761, 118 S.Ct. 2257). Both the federal and state provisions require that a charge be filed within 300 days of the alleged unlawful employment practice. Title VII, 42 U.S.C. § 2000e-5(e)(1) (2006); Mass. Gen. Laws ch. 151B, § 5 (2011). Tuli filed her complaint with the Massachusetts Commission Against Discrimination (MCAD) on November 28, 2007. The Hospital says that events listed in the time line set forth above that occurred prior to that date but outside of the 300-day window cannot be considered. However, under Supreme Court precedent, a series of acts may comprise a single hostile environment claim, and [i]t does not matter, for purpose of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). This is the “classic example of a continuing violation.” Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir.2009). The sequence also satisfies Massachusetts’ parallel analysis, which does not penalize victims of discrimination for reporting misconduct as it occurs and attempting to work with their employers to remedy the situation. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 750 N.E.2d 928, 939-41 (2001). Although in 2005 and 2006, prior to the 300-day window, Tuli was subject to “pinpricks,” id. at 941, Day’s presentation to the committee in October 2007 could be viewed as making clear that the situation was hopeless, triggering the clock for the sum of prior acts comprising the continuing violation. Id. at 942. The Hospital also complains that various evidence bearing on the hostile work environment claim was wrongly admitted at trial. Specifically, the Hospital contends that comments" } ]

[ { "docid": "6389191", "title": "", "text": "Also, during this time, male co-workers made loud sucking and kissing sounds when Mahan would walk past them. She did not specifically report this conduct to her supervisors, as she believed that this conduct was common knowledge. On or about January 23, 1995, Mahan was promoted to the Deputy Superintendent of Special Operations position. In her Verified Complaint she avers that “[a]t this time, she believed that as a result of her promotion, the harassment directed against her would stop.” Verified Comp. 1111. In her deposition testimony taken in December, 1997, Mahan stated that the car vandalism incidents ceased in the fall of 1994 and the kissing and sucking sounds ceased, at the latest, in March, 1995. In response to the Defendants’ Motion for Summary Judgment, Mahan filed an affidavit along with the affidavit of two coworkers stating that her car continued to be vandalized up to December of 1995 and that the kissing and sucking sounds continue. The Commission argues that this Court should disregard these affidavits in deciding on its motion because the affidavits contradict Mahan’s clear and unambiguous deposition testimony. DISCUSSION Mahan’s sexual harassment claims are based on the failure of the Commission to take adequate remedial action to address the sexual harassing conduct of fellow workers. A. Statute of Limitations. The Commission avers that Mahan’s sexual harassment claims under Chapter 151B and Title VII are time-barred. Under Chapter 151B, a person must file a charge of discrimination with the Massachusetts Commission Against Discrimination (“MCAD”) “within six months after the alleged act of discrimination.” Mass. Gen. Laws eh. 151B, § 5. Under Title VII, where a complaint initially has been filed with a state agency such as the MCAD, a charge must be filed within 300 days after the discrimination occurred. 42 U.S.C. § 2000e-5(e)(l). Mahan filed her MCAD complaint on March 8,1996, and indicated that she wanted this complaint filed with the EEOC as well. Thus, for the alleged acts of sexual harassment to be the basis for her sexual harassment claims, such unlawful conduct must have occurred on or after September 8, 1995 (Chapter 151B)," }, { "docid": "1900276", "title": "", "text": "statute of limitations. II. An employer’s duty to accommodate an employee’s disability is ordinarily activated by a request from the employee, Freadman v. Metro. Prop. & Gas. Ins. Co., 484 F.3d 91, 102 (1st Cir.2007), and the request must be “sufficiently direct and specific” to give the employer notice of the needed accommodation, Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (citation omitted); see also Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 23 (1st Cir.2004). If the request is refused, “the refusal is a discrete discriminatory act triggering the statutory limitations period.” Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 808 N.E.2d 257, 268 (2004); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (noting that “[discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire” are separate, actionable incidents of discrimination); Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 188 (1st Cir.2003) (citing Morgan and holding that transfer was a time-barred discrete act); Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) (holding that denial of an employee’s proposed accommodation for religious practices is a “single completed action when taken” and, as such, is a “discrete act” that starts the statutory clock). Tobin filed his administrative claims with the Massachusetts Commission Against Discrimination (under Chapter 151B) and the Equal Employment Opportunity Commission (under the ADA) on July 2, 2001. Under the ADA, which requires that such claims be filed within 300 days of the actionable conduct, see 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1), Tobin needed to prove that Liberty Mutual committed a discriminatory act on or after September 4, 2000. For Chapter 151B, which at the relevant time had a six-month limitations period, such an act needed to occur on or after January 2, 2001. Liberty Mutual takes two different paths in challenging the timeliness of To-bin’s failure-to-accommodate claim. First, it argues that there is no evidence in the record of a “direct and specific” request by Tobin for" }, { "docid": "23451034", "title": "", "text": "the opportunity to be heard.” Appellant’s Br., 34-35. For these reasons, we affirm the district court’s dismissal of Court Five but for the alternate reasons stated herein. F. Count Six We agree with the district court’s dismissal of Appellant’s retaliation claim under M.G.L. ch. 151B against all the Defendants, although for different reasons. Similar to Title VII, in order to establish a prima facie case of retaliation under Massachusetts anti-discrimination statute, Appellant “must show that (l)[s]he engaged in protected activity; (2)[s]he suffered an adverse employment action; and (3) a causal link existed between the protected activity and the adverse job action.” Thompson v. Coca-Cola Co., 522 F.3d 168, 181 (1st Cir.2008); see also Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.2005). Title VII forbids any “employer to discriminate against any of his employees ... [or any] labor organization to discriminate against any member thereof ... because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Under the Massachusetts employment discrimination statute, no “person, employer, [or] labor organization” may “discharge, expel or otherwise discriminate against any person ... because [she] has filed a complaint, testified or assisted in any proceeding” covered by the statute. Mass. Gen. Laws ch. 151B, § 4(4). Dixon v. International Broth. of Police Officers, 504 F.3d 73, 81 (1st Cir.2007). Pursuant to Mass. Gen. Laws ch. 151B, § 4(4), Appellant engages in a protected activity “if she has opposed any practices forbidden under this chapter or ... has filed a complaint, testified or assisted in any proceeding under [Mass. Gen. Laws ch. 151B, § 5].” See also Id, at 82 n. 5 (“There is no dispute that [Plaintiff] engaged in a protected activity by pursuing her sexual harassment claims.”); Noviello, 398 F.3d at 88 (“Here, there is no dispute that the plaintiff engaged in protected activity by filing a complaint.”); Douglas v. J.C. Penney Co., Inc., 422 F.Supp.2d 260, 279(D.Mass.2006)(“By complaining about perceived racial discrimination with regards to her comments and the Barbie incident, Plaintiff engaged in protected" }, { "docid": "12218759", "title": "", "text": "court held that any conduct alleged to violate Title VII that occurred before February 4, 1991—240 days prior to the MCAD complaint—and any conduct relevant to his claim under Chapter 151B occurring before June 2, 1991—180 days prior to the MCAD complaint, could not be considered. See 42 U.S.C. § 2000e-5(e); 29 C.F.R. §§ 1601.70(a), 1601.74(a); Mass. Gen. Laws ch. 151B § 9. To avoid the strictures of the limitations periods, Pilgrim contends that the periods should be extended due to a continuing violation. In the Title VII arena: [I]f a violation is of a continuing nature, the charge of discrimination filed with the appropriate agency may be timely as to all discriminatory acts encompassed by the violation so long as the charge is filed during the life of the violation or within the statutory period ... which commences upon the violation’s termination. Kassaye v. Bryant College, 999 F.2d 603, 606 (1st Cir.1993). The same holds true of Chapter 151B. See Lynn Teachers Union v. Mas sachusetts Comm’n Against Discrim., 406 Mass. 515, 520, 549 N.E.2d 97 (1990). A continuing violation may be either serial or systemic. Lawton v. State Mut. Life Assur. Co., 101 F.3d 218, 221 (1st Cir.1996). A systemic violation has its “roots in a discriminatory policy or practice; so long as the policy or practice itself continues into the limitation period, a challenger may be deemed to have filed a timely complaint.” Id. at 222 (citing Jensen v. Frank, 912 F.2d 517, 522 (1st Cir.1990)). Pilgrim argues only for a serial violation. This is one “eompris[ing] a number of discriminatory acts emanating from the same discriminatory animus, each of which constitutes a separate wrong actionable under Title VII.” Id. at 221-22. The series must contain a specific beachhead violation occurring within the limitations period. Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir.1994). Mere subsequent effects of earlier discriminatory action will not extend the limitations period. Kassaye, 999 F.2d at 606. As a threshold requirement, Pilgrim must identify at least one discriminatory act or practice occurring after February 4, 1991. Pilgrim maintains that Cortese’s refusal of" }, { "docid": "3543727", "title": "", "text": "Inc., 203 F.Supp.2d 35, 43 (D.Mass.2O02); Davis v. Lucent Techs., Inc., 251 F.3d 227, 230 n. 1 (1st Cir.2001)). . Although the charge-filing period for Title VII claims is typically 180 days, it is extended to 300 days where the state anti-discrimination agency enforces a parallel state or local law, as the MCAD does. See 42 U.S.C. § 2000e-5(e)(l);. 42 U.S.C. § 12117(a); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Williams v. City of Brockton, 59 F.Supp.3d 228, 245 (D.Mass.2014). . The continuing violation doctrine developed in the Title VII context, but it has been applied to ADA and chapter 15IB claims as well. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 n. 7 (1st Cir.2009); Castro-Medina v. Procter & Gamble Comm. Co., 565 F.Supp.2d 343, 373 (D.P.R.2008). . Although the First Circuit has observed, based on the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 118, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), that “it is no longer necessary for a jury to determine whether a violation is systemic or serial when considering the timeliness of a hostile work environment claim,” Crowley v. L.L. Bean, Inc., 303 F.3d 387, 406 (1st Cir.2002), that change appears to be limited to claims alleging a hostile work environment. See Arroyo-Audifred v. Verizon Wireless, Inc., 431 F.Supp.2d 215, 218-19 (D.P.R.2006). Recognition of the distinction seems to remain for the application of the continuing violation doctrine in other contexts. See, e.g., Davila-Torres v. Feliciano-Torres, 924 F.Supp.2d 359, 367 (D.P.R.2013). . Kahriman did not argue in her summary judgment briefing that her claims qualify as serial violations. Even if she were to make this argument, however, it would be unpersuasive. A serial violation is \"composed of a number of discriminatory acts emanating from the same discriminatory animus, each act constituting a separate [actionable] wrong,” but each act not itself \"rising to the level of a recognizable injury.” Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir.1994) (quoting Jensen v. Frank, 912 F.2d 517, 522 (1st" }, { "docid": "17868308", "title": "", "text": "She also contends that timeliness under a statute of limitations is a factual matter that cannot be concluded as a matter of law. Discrimination claims under 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 151B must be administratively pursued prior to the filing of a lawsuit. See Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277-278 (1st Cir.1999). A state plaintiff must file an administrative charge with the MCAD “within 300 days of the occurrence of the alleged harassing or discriminatory event or events.” Mass. Gen. Laws ch. 151B, § 5. The MCAD filing requirement has a dual purpose, first to give the agency an opportunity to investigate and conciliate the claim, and second to give a defendant notice of a potential suit. Carter v. Comm’r of Corr., 43 Mass.App.Ct. 212, 217, 681 N.E.2d 1255 (1997). See also Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir.1996). The failure to file a timely charge of discrimination with the MCAD requires the dismissal of any subsequent lawsuit. See Davis v. Lucent Techs., Inc., 251 F.3d 227, 231 (1st Cir.2001); Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 531 n. 11, 750 N.E.2d 928 (2001). Hall first became aware of the “differential treatment” in August of 2004. She then “contacted someone in FMR[’s] Human Resources department and thereafter met with her supervisor sometime in August of 2005.” Hall voluntarily resigned from FMR 354 days prior to the filing of her MCAD charge. The only “discriminatory act” alleged by Hall that falls within the 300-day limitations period occurred on December 13, 2005, when an FMR “agent” told Hall that “FMR did not intend to take further action” on her internal complaint. As a matter of law, however, this notification cannot be construed as a discriminatory act. See Sharp v. Gen. Motors Acceptance Corp., 2005 WL 3455850, at *4 (N.D.Ga. Dec. 16, 2005) (rejecting the argument that an employer’s alleged failure to remedy a supervisor’s pre-limitations period conduct constituted an “act” of harassment extending the filing period for an employee’s administrative charge); Cooper v. Wyeth Ayerst Lederle, 106 F.Supp.2d" }, { "docid": "3543705", "title": "", "text": "governing Title VII, and as a result, the statutes and case law discussing the statute of limitations in the Title VII context are equally applicable here. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 n.7 (1st Cir.2009). Under both Title VII and chapter 151B, a plaintiff must file an administrative complaint with the MCAD or the EEOC within 300 days of the date of the occurrence of the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(l); Mass. Gen. Laws ch. 151B, § 5; Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 40 (1st Cir.2011); Ocean Spray Cranberries, Inc. v. Mass. Comm’n Against Discrimination, 441 Mass. 632, 808 N.E.2d 257, 265-66 (2004). Kahriman filed her complaint with the MCAD on June 18, 2010. Accordingly, she would ordinarily be barred from pursuing relief for any alleged acts of discrimination that occurred more than 300 days prior to that time (prior to August 22, 2009). Kahriman seeks to invoke the continuing violation doctrine to preserve her claims for events that occurred before August 22, 2009. Under the continuing violation doctrine, “[a] party alleging employment discrimination may, in appropriate circumstances, file suit based on events that fall outside the applicable statutes of limitation.” Tobin, 553 F.3d at 130. This doctrine effectively serves to renew untimely discrimination claims if a related act occurred within the limitations period. See Davis v. Lucent Tech., Inc., 251 F.3d 227, 234 (1st Cir.2001); Ocean Spray, 808 N.E.2d at 266-67. “Under this continuing violation doctrine, a plaintiff who ordinarily would be unable to recover damages for discrete acts of discrimination falling outside the limitations period may avoid that bar if those acts are shown to be part of a pattern of discrimination anchored by acts that occurred within the limitations period.” Noviello v. City of Boston, 398 F.3d 76, 86 (1st Cir.2005) (citing Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 750 N.E.2d 928, 936 (2001)). The continuing violation doctrine can encompass two types of violations: serial and systemic. See Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 221" }, { "docid": "3543726", "title": "", "text": "the Lynn store was operated by — and correspondingly whether Kahriman was an employee of — defendant Wal-Mart Stores, Inc., or defendant Wal-Mart East, L.P. Rather than make this a dispute at issue in this case, the parties are satisfied to proceed on the basis that the two named defendants will be treated as potentially jointly and severally liable. For simplicity, I will refer in this Memorandum to both defendants jointly as \"Wal-Mart.” . There is some dispute in the record whether Kahriman’s transfer to a sales associate position and her subsequent transfers were in response to her requests for a position without heavy lifting. . Kahriman’s doctors report that the lifting she performed at Wal-Mart was a cause of , Kahriman’s hernias in 2Q03, 2006, and 2009. . Due to a \"work-sharing” agreement between the MCAD and the EEOC, a charge filed with the MCAD is treated as filed with the EEOC simultaneously. See Leung v. Citizens Bank, Civ. No. 12-11060-FDS, 2014 WL 1343271, at *3 (D.Mass. Apr. 2, 2014) (citing Seery v. Biogen, Inc., 203 F.Supp.2d 35, 43 (D.Mass.2O02); Davis v. Lucent Techs., Inc., 251 F.3d 227, 230 n. 1 (1st Cir.2001)). . Although the charge-filing period for Title VII claims is typically 180 days, it is extended to 300 days where the state anti-discrimination agency enforces a parallel state or local law, as the MCAD does. See 42 U.S.C. § 2000e-5(e)(l);. 42 U.S.C. § 12117(a); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Williams v. City of Brockton, 59 F.Supp.3d 228, 245 (D.Mass.2014). . The continuing violation doctrine developed in the Title VII context, but it has been applied to ADA and chapter 15IB claims as well. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 n. 7 (1st Cir.2009); Castro-Medina v. Procter & Gamble Comm. Co., 565 F.Supp.2d 343, 373 (D.P.R.2008). . Although the First Circuit has observed, based on the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 118, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), that" }, { "docid": "3543704", "title": "", "text": "to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R, Civ. P. 56(a), (c). A “genuine” dispute is one that, based on the pleadings, discovery, and disclosure materials in the record, “a reasonable jury could resolve ... in favor of the non-moving party,” and a “material” fact is one that has “the potential to affect the outcome of the suit under the applicable law.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citations and quotation marks omitted). In considering the record, I view the facts “in the light most favorable to the non-moving party.” Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir.1999). The defendants seek summary judgment on so much of Counts I, II, and IV of Kahriman’s complaint as alleges discrimination under the ADA and/or. chapter 151B for (1) events that occurred more than 300 days before Kahriman filed her charge of discrimination with the MCAD, and (2) Kahriman’s formal termination from employment. B. Statute of Limitations The ADA adopts the procedural provisions governing Title VII, and as a result, the statutes and case law discussing the statute of limitations in the Title VII context are equally applicable here. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 n.7 (1st Cir.2009). Under both Title VII and chapter 151B, a plaintiff must file an administrative complaint with the MCAD or the EEOC within 300 days of the date of the occurrence of the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(l); Mass. Gen. Laws ch. 151B, § 5; Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 40 (1st Cir.2011); Ocean Spray Cranberries, Inc. v. Mass. Comm’n Against Discrimination, 441 Mass. 632, 808 N.E.2d 257, 265-66 (2004). Kahriman filed her complaint with the MCAD on June 18, 2010. Accordingly, she would ordinarily be barred from pursuing relief for any alleged acts of discrimination that occurred more than 300 days prior to that time (prior to August 22, 2009). Kahriman seeks to invoke the continuing violation doctrine to preserve her claims for events that occurred before August" }, { "docid": "21468633", "title": "", "text": "c. 151B and Title VII (Counts I and IV) The individual defendants contend that Chatman’s Chapter 151B and Title VII claims should be dismissed because Chatman has not exhausted her administrative remedies as to them. These defendants assert that they were not named as respondents in the MCAD Charge. Rather, they say, Chat-man only identified “Gentle Communications” and “Gentle Dental centers” in that section of the charge form requiring that she name the parties who are alleged to have discriminated against her. For that reason, the individual defendants say, Chatman’s claims against them in counts I and TV must be dismissed. Massachusetts law requires that a person bringing a claim of discrimination under Chapter 151B first file a charge of discrimination with the MCAD within 180 days of the conduct of which the complaint is made. Mass. Gen. L. e. 151B § 5. Regulations implementing Chapter 151B provide that the charge must include “appropriate identification of the Complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts.” 804 CMR 1.03(4), (a). Failure to file a proper charge with the MCAD is fatal to a later claim filed in court under Chapter 151B. Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 673 N.E.2d 40, 41 & n. 1 (1996) (Rescript).. “The purpose of th[e] requirement [of filing a charge with the MCAD] is to provide the employer with prompt notice of the claim and to create an opportunity for early conciliation.” Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir.1996). The failure to name a party in a charge filed with the MCAD may preclude the plaintiff from later maintaining a Chapter 151B claim in court against that party. Powers v. H.B. Smith Co., Inc., 42 Mass.App.Ct. 657, 679 N.E.2d 252, 258 (1997) review denied, 425 Mass. 1105, 682 N.E.2d 1362 (1997). Neither the Massachusetts Supreme Judicial Court nor any Massachusetts appellate court, however, has laid out the precise contours of the kind of identification of the alleged wrongdoer that must be made in a charge filed with the MCAD in order to preserve a later civil action" }, { "docid": "20524809", "title": "", "text": "523-24, 939 N.E.2d 717 (workplace “pervaded by harassment or abuse ... and that the resulting intimidation, humiliation, and stigmatization posed a formidable barrier to [her] full participation in the workplace”), and not discrete acts, to which later acts may be related but are not continuing violations. The general rule is and, “[b]y the plain language of the statute, the limitations period begins to run at the time of the ‘act of discrimination.’ ” Ocean Spray Cranberries, Inc., 441 Mass. at 641, 808 N.E.2d 257; Mass. Gen. L. c. 151B, § 5. As with Supreme Court’s recognition in Morgan of the distinction between discrete acts and continuing violations, the Supreme Judicial Court distinguished between acts for which the precise moment of the act of discrimination “is easy to calculate: plainly, if an employee is denied a promotion on an improper basis, the date of the ‘act of discrimination’ is the date of that denial” and those instances in which “improper conduct continues or evolves over a course of time, the date of the ‘act of discrimination’ is more difficult to determine” and for which the MCAD has adopted the ‘continuing violations’ exception to the statute of limitations. Ocean Spray Cranberries, Inc., 441 Mass. at 641-42 & n. 12, 808 N.E.2d 257 (citing application MCAD regulation, now 804 C.M.R. § 1.10(2)); see Pelletier, 458 Mass. at 520, 939 N.E.2d 717 (citing Cuddyer and noting that “[c]hapter 151B discrimination complaints must be brought within these prescribed periods, but where alleged misconduct forms a pattern of behavior, the continuing violation doctrine applies”). That is, the continuing violation doctrine under Massachusetts law no more aids Dr. Shervin here than it did under federal law for the reasons discussed above. Accordingly, the Court cannot find that the continuing violation doctrine applies to Dr. Shervin’s c. 151B claims for the reasons discussed above in regard to the Title VII analysis. Rather, the probation-related decisions were discrete acts of which Dr. Shervin denounced as discriminatory and/or retaliatory and for which she did not contemporaneously receive the relief she sought. See Ocean Spray Cranberries, Inc., 441 Mass. at 646-47," }, { "docid": "5591625", "title": "", "text": "waivable, and that the defendants’ “long delay in attacking the sufficiency of plaintiffs administrative exhaustion clearly constitutes [such] a waiver”); Jordan v. Forfeiture Support Associates, 928 F.Supp.2d 588, 603 (E.D.N.Y.2013) (“[I]t is well established that ‘filing a timely charge of discrimination with the EEOC is ... a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.’ ” (quoting Francis, 235 F.3d at 767)); v. Mangia 57, Inc., No. 2012 WL 2319142, at *5 (E.D.N.Y. June 19, 2012) (“[B]ecause exhaustion is not a jurisdictional requirement, but simply a precondition to bringing a Title VII action, it can be waived by the parties or the court.” (citing Francis, 235 F.3d at 769)). d. Statutes of limitations i. Title VII claims Plaintiff is time-barred from all Title VII claims concerning conduct that took place prior to March 13, 2009. A plaintiff seeking to bring claims pursuant to Title VII must file a complaint with the EEOC or equivalent state agency within 300 days of the challenged conduct. 42 U.S.C. § 2000e-5(e)(1); see also Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 125-26 (2d Cir.2010) (“[I]n states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of with the Equal Employment Commission is 300 days.” citation and internal quotation marks omitted)). Plaintiff filed her EEOC claim on January 7, 2010. (Compl. ¶ 8 and Ex. A; Defs. Mem. 5.) Therefore, all Title VII claims that are based on conduct that before March 13, 2009, 300 days prior to January 7, 2010, are time-barred. At oral argument counsel for Plaintiff argued that the Court should consider that took place prior to March 13, 2009, that were part of Plaintiffs hostile work environment and discrimination claims under the “continuing violation” to the 300-day limitations period. (Oral Arg. Tr. 12:16-23.) The continuing violation exception to the limitations period for Title VII complaints permits courts to consider “ ‘claims that the discriminatory acts were part of a continuing policy and practice of prohibited" }, { "docid": "3543703", "title": "", "text": "16, and 17; (II) violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; and (III) interfered with and denied Kahri-man’s state and federal constitutional rights by threats, intimidation, or coercion, in violation of Mass. Gen. Laws ch. 12, § 111. The complaint asserts three additional counts against Defendant Devuono individually: (IV) unlawful discrimination against Kahriman in violation of Mass. Gen; Laws ch. 151B, §§ 4, 4A, &• 5; (V) intentional infliction of emotional distress; and (VI) intentional interference with a contractual or advantageous business relationship. Finally, the complaint asserts one count for injunctive relief against Wal-Mart (Count VII). In addition to declaratory and injunctive relief, Kahriman seeks compensatory damages including for her physical and emotional pain- and suffering, back pay for lost wages and benefits, interest on back pay, and front pay for future lost wages and benefits; punitive damages; enhanced damages; attorneys’ fees and costs; and reinstatement to a position with a reasonable accommodation. II. DISCUSSION A. Standard of Review Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R, Civ. P. 56(a), (c). A “genuine” dispute is one that, based on the pleadings, discovery, and disclosure materials in the record, “a reasonable jury could resolve ... in favor of the non-moving party,” and a “material” fact is one that has “the potential to affect the outcome of the suit under the applicable law.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citations and quotation marks omitted). In considering the record, I view the facts “in the light most favorable to the non-moving party.” Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir.1999). The defendants seek summary judgment on so much of Counts I, II, and IV of Kahriman’s complaint as alleges discrimination under the ADA and/or. chapter 151B for (1) events that occurred more than 300 days before Kahriman filed her charge of discrimination with the MCAD, and (2) Kahriman’s formal termination from employment. B. Statute of Limitations The ADA adopts the procedural provisions" }, { "docid": "3543702", "title": "", "text": "working with you to determine whether or not you are eligible for a job aid or environmental adjustment due to your medical condition.” B. Procedural History On June 18, 2010, Kahriman filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) and the United States Equal Employment Opportunity Commission (EEOC) alleging that Wal-Mart Stores, Inc. and Devuono discriminated against her in violation of Mass Gen. Laws ch. 151B .and the Americans with Disabilities Act, 42.U.S.C. §§ 12101 et seq. Kahriman received a notice of right to sue letter from the EEOC and she in turn informed the MCAD that she intended to file an action in state superior court; the MCAD accordingly dismissed her complaint without prejudice. Kahriman filed a complaint in the Essex County Superior Court on August 27,2012. The defendants removed the case to this court on the basis of federal question jurisdiction, 28 U.S.C. § 1331. The complaint alleges that all of the defendants: (I) violated the Massachusetts Fair Employment Practices Law, Mass. Gen. Laws ch. 151B §§ 1, 4, 4A, 5, 16, and 17; (II) violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; and (III) interfered with and denied Kahri-man’s state and federal constitutional rights by threats, intimidation, or coercion, in violation of Mass. Gen. Laws ch. 12, § 111. The complaint asserts three additional counts against Defendant Devuono individually: (IV) unlawful discrimination against Kahriman in violation of Mass. Gen; Laws ch. 151B, §§ 4, 4A, &• 5; (V) intentional infliction of emotional distress; and (VI) intentional interference with a contractual or advantageous business relationship. Finally, the complaint asserts one count for injunctive relief against Wal-Mart (Count VII). In addition to declaratory and injunctive relief, Kahriman seeks compensatory damages including for her physical and emotional pain- and suffering, back pay for lost wages and benefits, interest on back pay, and front pay for future lost wages and benefits; punitive damages; enhanced damages; attorneys’ fees and costs; and reinstatement to a position with a reasonable accommodation. II. DISCUSSION A. Standard of Review Summary judgment is appropriate when “there is no genuine dispute as" }, { "docid": "20964605", "title": "", "text": "adequate reason to reconsider plaintiffs application. (Mou Decl. Ex. 9, Dechberry v. City of New York, No. 11-CV-2767, Order Denying Reconsideration.) The court has no basis to disturb Judge Weinstein’s rulings. Accordingly, plaintiffs' claims that arise from events pre-dating the execution of the Settlemént Agreément and General-Release—July 13, 2012—and that could have been brought in the first action are barred and are hereby dismissed. II. Claims That Accrued Prior to August 21, 2012 are Time Barred by Statute of Limitations A. Legal Standard A plaintiff who wishes to pursue a federal employment discrimination suit under either Title VII or the ADA must file \"a charge with the EEOC within 300 days of the alleged unlawful employment practice or challenged discriminatory act. 42 U.S.C. § 2000e-5(e)(1) (Title VII); 42 U.S.C. § 12117(a)(ADA) (applying, the powers, remedies and procedures set forth under Title VII to charges of discrimination brought under, the ADA); see also Cherry v. City of New York, 381 Fed.Appx. 57, 58 (2d Cir.2010) (affirming dismissal of Title VII and ADA claims as untimely where plaintiff failed to file EEOC charge within 300 days of discriminatory conduct); Edwards v. Elmhurst Hosp. Ctr., No. 11-CV-5348, 2013 WL 839554, at *3 (E.D.N.Y. Feb. 4, 2013) report and recommendation adopted, 2013 WL 831162 (E.D.N.Y. Mar. 6, 2013) (dismissing claims under Title VII and the ADA as time-barred due to plaintiffs failure to file his EEOC charge within 300 days of the alleged acts of discrimination). A charge alleging a hostile work environment claim, however, will not be time-barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir.2010) (citing Morgan, 536 U.S. at 105, 122 S.Ct. 2061) (“[C]onsideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an" }, { "docid": "20524810", "title": "", "text": "is more difficult to determine” and for which the MCAD has adopted the ‘continuing violations’ exception to the statute of limitations. Ocean Spray Cranberries, Inc., 441 Mass. at 641-42 & n. 12, 808 N.E.2d 257 (citing application MCAD regulation, now 804 C.M.R. § 1.10(2)); see Pelletier, 458 Mass. at 520, 939 N.E.2d 717 (citing Cuddyer and noting that “[c]hapter 151B discrimination complaints must be brought within these prescribed periods, but where alleged misconduct forms a pattern of behavior, the continuing violation doctrine applies”). That is, the continuing violation doctrine under Massachusetts law no more aids Dr. Shervin here than it did under federal law for the reasons discussed above. Accordingly, the Court cannot find that the continuing violation doctrine applies to Dr. Shervin’s c. 151B claims for the reasons discussed above in regard to the Title VII analysis. Rather, the probation-related decisions were discrete acts of which Dr. Shervin denounced as discriminatory and/or retaliatory and for which she did not contemporaneously receive the relief she sought. See Ocean Spray Cranberries, Inc., 441 Mass. at 646-47, 808 N.E.2d 257 (concluding that claim regarding the employer’s failure to make reasonable accommodation was time-barred where “there is no basis in the record to support the conclusion that [the claimant] did not know or should not have been reasonably aware that his request was not going to be accommodated”). Therefore, the Court finds that Dr. Shervin cannot benefit from the continuing violation doctrine for liability for her c. 151B claims. 3. The Operative Limitations Date for Harvard is December 30, 2008 and June 5, 2008 for the Remaining Defendants In light of the Court’s ruling about the statute of limitations, the Court turns to assessing the appropriate operative statute of limitations dates. The parties do not dispute that Dr. Shervin and Partners entered into a Tolling Agreement on April 1, 2009 stating that “any discrimination or retaliation claims filed by Dr. Shervin on or before October 26, 2009 shall be treated as having been filed on April 1, 2009 for statute of limitations purposes.” D. 217 ¶413. The Tolling Agreement, the existence of which" }, { "docid": "6389192", "title": "", "text": "affidavits contradict Mahan’s clear and unambiguous deposition testimony. DISCUSSION Mahan’s sexual harassment claims are based on the failure of the Commission to take adequate remedial action to address the sexual harassing conduct of fellow workers. A. Statute of Limitations. The Commission avers that Mahan’s sexual harassment claims under Chapter 151B and Title VII are time-barred. Under Chapter 151B, a person must file a charge of discrimination with the Massachusetts Commission Against Discrimination (“MCAD”) “within six months after the alleged act of discrimination.” Mass. Gen. Laws eh. 151B, § 5. Under Title VII, where a complaint initially has been filed with a state agency such as the MCAD, a charge must be filed within 300 days after the discrimination occurred. 42 U.S.C. § 2000e-5(e)(l). Mahan filed her MCAD complaint on March 8,1996, and indicated that she wanted this complaint filed with the EEOC as well. Thus, for the alleged acts of sexual harassment to be the basis for her sexual harassment claims, such unlawful conduct must have occurred on or after September 8, 1995 (Chapter 151B), and on or after May 13, 1995 (Title VII) unless Mahan can show a continuing violation. The Commission asserts that based on Mahan’s MCAD complaint, her Verified Complaint, and her deposition testimony, the ear vandalism last occurred in the fall of 1994 and the kissing and sucking sounds ended in late March, 1995; therefore, such conduct cannot be a basis for her sexual harassment claim due to the statute of limitations. 1. Continuing Violation In response, Mahan argues that her sexual harassment claims are not time-barred as the alleged unlawful conduct continued into the limitations period. Specifically, she claims, in a post-deposition affidavit filed with her memorandum in opposition to the Defendant’s Motion for Summary Judgment, that in December, 1995, she and two co-workers found Mahan’s vehicle covered with urine and pornography. See Mahan Aff. H11. Additionally, she claims in her affidavit that the kissing and sucking sounds continue into the present. Mahan Aff. 1115. Under federal law, a continuing violation is characterized as either a serial violation or a systemic violation. A serial violation" }, { "docid": "21468664", "title": "", "text": "filed with the MCAD within ninety days after filing (or sooner if a commissioner of the MCAD consents in writing) and commence a civil action. . In light of the disposition of the Title VII claims against the individual defendants, discussed in Section V.C, of this opinion, the discussion in this section is limited to the Chapter 15IB claims. Unlike Title VII, Chapter 15IB creates individual liability for various kinds of discrimination (including sexual harassment) with respect to employers as well as persons other than employers. See, e.g., Mass. Gen. L. c. 15IB §§ 4, Subsections 4A, 5 and 16A. See also Ruffino v. State Street Bank and Trust Co., 908 F.Supp. 1019, 1048 (D.Mass.1995) (holding that individual liability exists under c. 151B). In apparent recognition of this, the individual defendants do not claim, as they do with respect to Title VII (discussed in section V.C of this opinion), that there is no individual liability under Chapter 15IB. Their claim as to Chapter 151B is that they were not appropriately identified in the MCAD Charge and therefore no claim lies against them in this action for violating that statute. . The Eleventh Circuit, for example, considers the following factors important: (1) the similarity of interest between the named party and the unnamed party; (2) whether the plaintiff could have ascertained the identity of the unnamed party at the time the EEOC charge was filed; (3) whether the unnamed parties received adequate notice ol the charges; (4) whether the unnamed parties had an adequate opportunity to participate in the reconciliation process; and (5) whether the unnamed party actually was prejudiced by being excluded from the EEOC proceedings. Virgo, 30 F.3d at 1359. . Sexual harassment can be a form of sex discrimination actionable under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-65, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986); Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 436-37 (1st Cir.1997). . 42 U.S.C. § 2000e-8(c) provides, in relevant part, Every employer ... subject to this title shall (1) make and keep such records relevant to the" }, { "docid": "20524783", "title": "", "text": "other Defendants, Harvard argues that neither the “continuing violation” doctrine nor the so-called grievance exception to the statute of limitations applies. D. 151 at 28. Harvard also seeks summary judgment on all counts on the grounds that even in considering Dr. Shervin’s timely claims, Harvard was not Dr. Shervin’s employer, and therefore cannot be held liable under Title VII or c. 151B, and on the grounds that there is no evidence that Harvard possessed discriminatory animus, necessary for aiding and abetting discrimination or retaliation, since it is not the employer of Dr. Herndon or Dr. Rubash. D. 151 at 1-2. The Court will address each of the Defendants’ arguments. A. The Grievance Exception Does Not Apply to Dr. Shervin’s c. 151B Claims The Court first addresses Dr. Shervin’s argument that regardless of the Tolling Agreement, the statute of limitations does not apply to her c. 151B claims because of the so called “grievance exception” to the statute of limitations. The Court concludes that the grievance exception does not apply because Dr. Shervin did not invoke any grievance proceedings pursuant to a collective bargaining agreement. Under c. 151B (as well as Title VII), a claim of unlawful discrimination or retaliation must be filed with MCAD within 300 days of alleged illegal conduct. Mass. Gen. L. c. 151B, § 5; 42 U.S.C. § 2000e-5(1); Ryan v. Holie Donut, Inc., 82 Mass.App.Ct. 633, 641, 977 N.E.2d 64 (2012). Massachusetts regulations provide, however: [The] 300 day requirement shall not be a bar to filing in those instances where ... an aggrieved person enters into grievance proceedings concerning the alleged discriminatory act(s) within 300 days of the conduct complained of and subsequently files a complaint within 300 days of the outcome of such proceeding(s). 804 C.M.R. § 1.10(2); see also D. 231 at 64. As Dr. Shervin notes in her papers in opposition to summary judgment, D. 231 at 64, the Massachusetts Supreme Judicial Court has “consistently granted deference to MCAD’s decisions and policies” when interpreting c. 151B. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 534, 750 N.E.2d 928 (2001). While the" }, { "docid": "22419046", "title": "", "text": "the MCAD within six months of the alleged violation. See Mass. Gen. Laws ch. 151B, § 5 (1989) (amended 2002). By contrast, the EEOC filing had to occur within 300 days of the date of the alleged violation. See 42 U.S.C. § 2000e-5(e)(1); see also Sabree v. United Bhd. of Carpenters & Joiners, 921 F.2d 396, 399 & n. 5 (1st Cir.1990) (discussing timely filing of charges of discrimination with the EEOC in “deferral” states, i.e., states such as Massachusetts, which have their own civil rights statute and agency). There is no dispute that the plaintiff met these administrative, deadlines; the earliest incident of alleged harassment occurred on September 11, 1999, and the plaintiffs administrative complaint was filed with both agencies on March 6, 2000. A claimant who wishes to sue under chapter 151B must allow a waiting period to pass, file her suit, and notify the MCAD (which is then required to dismiss the administrative proceeding). Mass. Gen. Laws ch. 151B, § 9. This civil suit must be instituted no later than three years after the occurrence of the alleged violation. See id. The federal prototype is different. A Title VII claimant may sue only after the EEOC issues a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(l). Once such a letter is received, the claimant must file her suit within ninety days. Id. The fact that an analogous state statute of limitations has expired with respect to a parallel state harassment action does not create a temporal bar to a Title VII suit. See Burgh v. Borough Council, 251 F.3d 465, 473 (3d Cir.2001); Kirk v. Rockwell Int’l Corp., 578 F.2d 814, 819 (9th Cir.1978); Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 522 (6th Cir.1975). Here, the plaintiffs Title VII claims are unquestionably timely: she received a right-to-sue letter on April 25, 2003 and added her Title VII claims to her pending suit on May 19, 2003. The situation is more tenebrous with regard to the chapter 151B claims. The plaintiff first brought suit on these claims on November 1, 2002. Based on the three-year statute of" } ]

[ { "docid": "1741989", "title": "", "text": "POLITZ, Circuit Judge: Informed by the teachings of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and guided by, inter alia, our recent decision in Reddix v. Thigpen, 728 F.2d 705 (5th Cir.), reh’g denied, 732 F.2d 494 (5th Cir.1984), we direct issuance of a writ of habeas corpus, to the end that Crawford Bullock, Jr. be sentenced to life imprisonment or accorded a sentencing hearing consistent herewith. Contextual Background Crawford Bullock, Jr., was found guilty of the offense of capital murder, in a felony-murder setting, by a Mississippi state court jury and sentenced to death by lethal gas. His conviction and sentence were affirmed by the Supreme Court of Mississippi, Bullock v. State, 391 So.2d 601 (Miss. 1980), cert. denied, 452 U.S. 931, 101 S.Ct. 3068, 69 L.Ed.2d 432 (1981). The Mississippi high court subsequently rejected Bullock’s application for leave to file a petition for writ of error coram nobis. With state remedies exhausted, Bullock sought Great Writ relief, 28 U.S.C. § 2254, alleging that his death sentence was prohibited by the eighth and fourteenth amendments, as explicated in Enmund, because he neither killed, attempted to kill, intended the death of the robbery victim, nor contemplated the use of lethal force. After a trial by consent before a magistrate, 28 U.S.C. § 636(c), Bullock’s petition was denied. Judgment was entered by the district court. Bullock appeals, urging the foregoing constitutional argument. He further urged a due process deprivation based on the assertion that the Mississippi Supreme Court failed to make an appropriate proportionality review. In light of the intervening decision in Pulley v. Harris, — U.S.-, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), that assignment of error is abandoned. We address only the Enmund -based contention. Facts The events leading to the brutal homicide which is at the core of this case began in the evening hours of September 21, 1978, when Bullock, with one leg encased in a cast, and Ricky Tucker repaired to the Town Creek Saloon in Jackson, Mississippi for a night of drinking. Sometime after midnight they left the tavern" } ]

[ { "docid": "7288596", "title": "", "text": "denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980); United States v. Cravero, 545 F.2d 406, 417-18 (5th Cir.1976), cert. denied sub nom., Miller v. United States, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977); McGeehan v. Wainwright, 526 F.2d 397, 399-401 (5th Cir.1976), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1975); Hopkins v. State of Alabama, 524 F.2d 473, 475 (5th Cir.1975); United States v. Looney, 481 F.2d 31, 32-33 (5th Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 476 (1973). Cf. United States v. Gamble, 473 F.2d 1274 (7th Cir.1973); United States v. Briddle, 436 F.2d 4 (8th Cir.1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971). . Kolodziej, 706 F.2d at 597 (emphasis omitted) (citing Looney, 481 F.2d at 33). . See Chimel, 89 S.Ct. at 2046 (White, J., dissenting); Kolodziej, 706 F.2d at 597. . See Kolodziej, 706 F.2d at 596. . Jackson, 700 F.2d at 190. . Sheikh, 654 F.2d at 1072. . Cravero, 545 F.2d at 418. . McGeehan, 526 F.2d at 399. . Looney, 481 F.2d at 31. . Kolodziej, 706 F.2d at 597. . Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. . Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. . Kirkpatrick, 777 F.2d at 286-88. . Ibid., 777 F.2d at 286 (citing Reddix v. Thigpen, 728 F.2d 705, 708 (5th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984)). . 779 F.2d 1115 (5th Cir.1986). . See Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 S.Ct. 347 (1986); Satterwhite v. Texas, — U.S. -, 108 S.Ct. 1792, 100 L.Ed. 284 (1988). .Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942); Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978); Zuck v. Alabama, 588 F.2d 436, 438 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979). . Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d" }, { "docid": "11686028", "title": "", "text": "L.Ed.2d 275 (1977); Bruce v. Estelle, 483 F.2d 1031, 1036 (5th Cir.1973), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). . 483 F.2d 1031, 1036-37 (5th Cir.1973), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). . 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). . Id. at 402, 80 S.Ct. at 789; see also Bruce v. Estelle, 483 F.2d at 1041-42; McCune v. Estelle, 534 F.2d 611, 612 (5th Cir.1976). . 483 F.2d at 1043. See also Thompson v. Blackburn, 776 F.2d 118, 124 (5th Cir.1985); Johnson v. Estelle, 704 F.2d at 238; Davis v. Alabama, 545 F.2d at 465; McCune v. Estelle, 534 F.2d at 612. . Cf. McCune v. Estelle, 534 F.2d at 612. . 466 U.S. at 689, 104 S.Ct. at 2065. . Id. at 689-90, 104 S.Ct. at 2065-66. . Celestine v. Blackburn, 750 F.2d 353, 358 (5th Cir.1984), cert. denied, 472 U.S. 1022, 105 S.Ct. 3490, 87 L.Ed.2d 624 (1985); Knighton v. Maggio, 740 F.2d 1344, 1349 (5th Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 241 (1984); Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir.1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982). . 466 U.S. at 691, 104 S.Ct. at 2066. . 788 F.2d 1101 (5th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1292, 94 L.Ed.2d 148 (1987). . 693 F.2d 1243 (5th Cir.1982), rev’d on other grounds, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Id. at 1256. . See Baldwin v. Maggio, 704 F.2d 1325, 1328-29 (5th Cir.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2669, 81 L.Ed.2d 374 (1984). . La.Code Crim.Proc.Ann. art. 905.5 (West 1986). . See La.Code Crim.Proc.Ann. art. 905.3 (West 1986); State v. Jones, 474 So.2d 919, 932 (La. 1985), cert. denied, — U.S. -, 106 S.Ct. 2906, 90 L.Ed.2d 993 (1986); State v. Welcome, 458 So.2d 1235, 1246 (La.1983), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 152 (1985). . Compare Jones v. Thigpen, 788 F.2d at 1103 with Glass v. Blackburn," }, { "docid": "13525709", "title": "", "text": "sentence. Johnson, however, addressed Mississippi, not Louisiana, law. Mississippi law requires a jury to weigh mitigating and aggravating circumstances while, as we have noted, Wilson held that Louisiana law does not. For these reasons the petition for rehearing is denied. . 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . Jones v. Butler, slip op. at 1266-67, 864 F.2d 348, 363-364 (5th Cir.1988). . La.Code Crim.Proc. art. 841. . 506 So.2d 1283 (La.App.1987). . Id. at 1287. . Id. (citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880)). . See Engle v. Isaac, 456 U.S. 107, 130-34, 102 S.Ct. 1558, 1573-75, 71 L.Ed.2d 783 (1982). . State v. Clark, 492 So.2d 862, 865 (La.1986); State v. Hamilton, 478 So.2d 123, 127 n. 7 (La.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986); State v. Glass, 455 So.2d 659, 667 (La.1984), cert. denied, 471 U.S. 1080, 105 S.Ct. 2159, 85 L.Ed.2d 514 (1985). . Wheat v. Thigpen, 793 F.2d 621, 624 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987). . Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986). . Id. at 96, 106 S.Ct. at 1723. . Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21. . United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir.1987). . See id., (quoting United States v. Erwin, 793 F.2d 656, 667 (5th Cir.), cert. denied, 479 U.S. 991, 107 S.Ct. 589, 93 L.Ed.2d 590 (1986)). . Batson, 476 U.S. at 98-101, 106 S.Ct. at 1724-25. . Id. at 100, 106 S.Ct. at 1725. . 479 U.S. 314, 329, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). . Id. at 329, 107 S.Ct. at 716 (quoting United States v. Johnson, 457 U.S. 537, 556 n. 16, 102 S.Ct. 2579, 2590 n. 16, 73 L.Ed.2d 202 (1982).). . Jones v. Butler, 864 F.2d 348, 363-364 (5th Cir.1988). . See Wilson v. Butler, 813 F.2d 664, 673-74, reh’g granted on other grounds, 825 F.2d 879 (5th Cir.1987), cert. denied, — U.S. -," }, { "docid": "3164697", "title": "", "text": "U.S.C. § 753(b) (1982). . United States v. Smith, 433 F.2d 149 (5th Cir.1970); United States v. Carter, 347 F.2d 220 (2d Cir.), cert. denied, 382 U.S. 888, 86 S.Ct. 178, 15 L.Ed.2d 124 (1965). . United States v. Smith, 433 F.2d at 151; 8 Federal Procedure, L.Ed. § 20:183, at 305 (1982). . Vela v. Estelle, 708 F.2d 954, 956 (5th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984). . Citing Higgins v. Wainwright, 424 F.2d 177, 178 (5th Cir.), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970). . 737 F.2d 1372 (5th Cir.1984). . Id. at 1390. . See La.Code Crim.P. art. 905.4 (West 1984). . See supra, text accompanying note 3. . 712 F.2d 126 (5th Cir.1983). . 762 F.2d 1383 (11th Cir.1985). . — U.S. —, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). . Id. at —, 105 S.Ct. at 2637, 86 L.Ed.2d at 236. . Brooks v. Kemp, 762 F.2d 1383, 1411 (11th Cir.1985) (en banc). See also Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir.1983), cert. denied, — U.S. —, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984). . The federal district judge cited Fulford v. Maggio, 692 F.2d 354, 359 (5th Cir.1982), rev’d on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983). . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Id. at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 692. . Id. at —, 104 S.Ct. at 2069-70, 80 L.Ed.2d at 699; Willie v. Maggio, 737 F.2d 1372, 1392 (5th Cir.1984). . 466 U.S. at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 692. See also McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763, 773 n. 14 (1970) (the right to counsel is the right to effective assistance of counsel). . Strickland, 466 U.S. at —, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. . Id. at —, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. . Id. . Id. . Id. . Id. at" }, { "docid": "21845456", "title": "", "text": "petition for cert. filed, 53 U.S.L.W. 3568 (U.S. Jan. 29, 1985) (No. 84-1236); Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984), petition for cert. filed, 53 U.S.L.W. 3568 (U.S. Jan. 30, 1985) (No. 84-1237); Reddix v. Thigpen, 728 F.2d 705 (5th Cir.), reh’g denied, 732 F.2d 494 (5th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); see also Garcia v. Illinois, — U.S.-, 104 S.Ct. 3555, 82 L.Ed.2d 856 (1984) (Marshall, J., dissenting from denial of certiorari). But see State v. Tison, 142 Ariz. 446, 690 P.2d 747, 748-49 (1984) (en banc); People v. Garcia, 97 Ill.2d 58, 73 Ill.Dec. 414, 454 N.E.2d 274, 284-85 (1983), cert. denied, — U.S. -, 104 S.Ct. 3555, 82 L.Ed.2d 856 (1984). In our opinion, the question of whether the defendant’s culpability satisfies the eighth amendment is sufficiently distinct from the question of the defendant’s guilt that a specific jury finding is not constitutionally required. The necessity of ensuring that the jury finds every element of the crime beyond a reasonable doubt focuses on procedural due process concerns, see United States v. U.S. Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), whereas the proportionality review mandated by Enmund is aimed at ensuring that imposition of the death penalty is not excessive in light of the defendant’s culpability. 102 S.Ct. at 3377. We see no reason why the Enmund inquiry need be characterized as an additional element that the state must prove to the jury beyond a reasonable doubt at the guilt or sentencing phase before the death penalty lawfully can be imposed, so long as a reviewing court can determine from the record that the eighth amendment has been satisfied. It may very well be that a specific jury finding on the defendant’s intent or an “Enmund instruction” at the sentencing hearing is desirable, to develop a record that will assist a reviewing court in conducting a proper proportionality review in a particular case. We decline to transform the desirability of such procedures, however, into a constitutional requirement that the trier of fact make specific Enmund" }, { "docid": "11686026", "title": "", "text": "Constitution as interpreted by the Supreme Court of the United States. The United States Supreme Court has upheld the validity of capital punishment for the crime of murder, and this Court must follow. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). . State v. Wilson, 467 So.2d 503 (La.1985). . Wilson v. Louisiana, — U.S. -, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). . 754 F.2d 258 (8th Cir.), cert. denied, — U.S. -, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). . 753 F.2d 877 (11th Cir.1985), cert. granted, — U.S. -, 106 S.Ct. 1331, 92 L.Ed.2d 737 (1986). . 745 F.2d 1332 (11th Cir.1984), cert. granted, — U.S. -, 106 S.Ct. 2888, 90 L.Ed.2d 976 (1986). . 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). . See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674 (1984). . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Id. at 694, 104 S.Ct. at 2068. . See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); Johnson v. Estelle, 704 F.2d 232, 239 (5th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 237 (1984); Martin v. Texas, 694 F.2d 423, 425 (5th Cir.1982); Guice v. Fortenberry, 661 F.2d 496, 503 (5th Cir.1981). . La.Rev.Stat.Ann. § 14:14 (West 1986); see also State v. Brogdon, 426 So.2d 158, 168 (La. 1983), cert. denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985); State v. Roy, 395 So.2d 664, 665-66 (La.1981). . See Pate v. Robinson, 383 U.S. 375, 378, 386, 86 S.Ct. 836, 838, 842, 15 L.Ed.2d 815 (1966); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), vacating 223 F.2d 582 (D.C.Cir.1955); Holmes v. King, 709 F.2d 965, 966 (5th Cir.), cert. denied, 464 U.S. 984, 104 S.Ct. 428, 78 L.Ed.2d 362 (1983); Davis v. Alabama, 545 F.2d 460, 463 (5th Cir.), cert. denied, 431 U.S. 937, 97 S.Ct. 2682, 53" }, { "docid": "1528312", "title": "", "text": "751 F.2d 1432 (5th Cir.1985), cert. denied, 475 U.S. 1138, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986); United States v. Jones, 712 F.2d 115 (5th Cir.1983). . 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). . 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). . 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (failure of the state to reveal favorable information such as inducements may violate due process). . Ex parte Duff-Smith, No. 16,92601 at 81-85. . 28 U.S.C. § 2254(d). . Ross v. Estelle, 694 F.2d 1008 (5th Cir.1983). . Vail v. Procunier, 747 F.2d 277 (5th Cir.1984). . Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lincecum v. Collins, 958 F.2d 1271 (5th Cir.1992). . Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Barnard, 958 F.2d at 638. . Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.1992) (citing Strickland). . Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. . Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). . Id. . 28 U.S.C. § 2254(d); Ellis v. Lynaugh, 873 F.2d 830 (5th Cir.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989). . Witt, 469 U.S. at 426, 105 S.Ct. at 853, 83 L.Ed.2d at 853. . Mattheson, 751 F.2d at 1444; Jones, 712 F.2d at 122. . Wilkerson, 950 F.2d at 1065 (quoting Mattheson, 751 F.2d at 1441). . Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Green v. Lynaugh, 868 F.2d 176 (5th Cir.), cert. denied, 493 U.S. 831, 110 S.Ct. 102, 107 L.Ed.2d 66 (1989). . Gilliard v. Scroggy, 847 F.2d 1141 (5th Cir.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989). . See Barnard, 958 F.2d at 642 n. 11. . Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . Parker v. Procunier, 763 F.2d 665, 666 (5th Cir.)," }, { "docid": "11686027", "title": "", "text": "694, 104 S.Ct. at 2068. . See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); Johnson v. Estelle, 704 F.2d 232, 239 (5th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 237 (1984); Martin v. Texas, 694 F.2d 423, 425 (5th Cir.1982); Guice v. Fortenberry, 661 F.2d 496, 503 (5th Cir.1981). . La.Rev.Stat.Ann. § 14:14 (West 1986); see also State v. Brogdon, 426 So.2d 158, 168 (La. 1983), cert. denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985); State v. Roy, 395 So.2d 664, 665-66 (La.1981). . See Pate v. Robinson, 383 U.S. 375, 378, 386, 86 S.Ct. 836, 838, 842, 15 L.Ed.2d 815 (1966); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), vacating 223 F.2d 582 (D.C.Cir.1955); Holmes v. King, 709 F.2d 965, 966 (5th Cir.), cert. denied, 464 U.S. 984, 104 S.Ct. 428, 78 L.Ed.2d 362 (1983); Davis v. Alabama, 545 F.2d 460, 463 (5th Cir.), cert. denied, 431 U.S. 937, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977); Bruce v. Estelle, 483 F.2d 1031, 1036 (5th Cir.1973), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). . 483 F.2d 1031, 1036-37 (5th Cir.1973), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). . 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). . Id. at 402, 80 S.Ct. at 789; see also Bruce v. Estelle, 483 F.2d at 1041-42; McCune v. Estelle, 534 F.2d 611, 612 (5th Cir.1976). . 483 F.2d at 1043. See also Thompson v. Blackburn, 776 F.2d 118, 124 (5th Cir.1985); Johnson v. Estelle, 704 F.2d at 238; Davis v. Alabama, 545 F.2d at 465; McCune v. Estelle, 534 F.2d at 612. . Cf. McCune v. Estelle, 534 F.2d at 612. . 466 U.S. at 689, 104 S.Ct. at 2065. . Id. at 689-90, 104 S.Ct. at 2065-66. . Celestine v. Blackburn, 750 F.2d 353, 358 (5th Cir.1984), cert. denied, 472 U.S. 1022, 105 S.Ct. 3490, 87 L.Ed.2d 624 (1985); Knighton v. Maggio, 740 F.2d 1344, 1349 (5th Cir.), cert." }, { "docid": "7288597", "title": "", "text": "F.2d at 418. . McGeehan, 526 F.2d at 399. . Looney, 481 F.2d at 31. . Kolodziej, 706 F.2d at 597. . Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. . Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. . Kirkpatrick, 777 F.2d at 286-88. . Ibid., 777 F.2d at 286 (citing Reddix v. Thigpen, 728 F.2d 705, 708 (5th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984)). . 779 F.2d 1115 (5th Cir.1986). . See Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 S.Ct. 347 (1986); Satterwhite v. Texas, — U.S. -, 108 S.Ct. 1792, 100 L.Ed. 284 (1988). .Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942); Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978); Zuck v. Alabama, 588 F.2d 436, 438 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979). . Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980); Baty v. Balkom, 661 F.2d 391, 395-96 (5th Cir.1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). . See Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974). . See id. at 1244-45. . See Count Galeazzo Ciano, The Ciano Diaries, 1939-1943; President John F. Kennedy, April 21, 1961. . Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Cf. Baty, 661 F.2d at 394-95; Francis v. Spraggins, 720 F.2d 1190, 1193-95 (11th Cir.1983), cert. denied, 470 U.S. 1059, 105 S.Ct. 1776, 84 L.Ed.2d 835 (1985)." }, { "docid": "11686033", "title": "", "text": "denied, — U.S. -, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986); Brock v. McCotter, 781 F.2d 1152, 1156 (5th Cir.), cert. denied, — U.S. -, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986). . La.Code Crim.Proc.Ann. art. 841 (West 1986); Smith v. Maggio, 696 F.2d 365, 369 (5th Cir.), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 113 (1983); Tyler v. Phelps, 643 F.2d 1095, 1100 (5th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1992, 72 L.Ed.2d 455 (1982). . See County Court v. Allen, 442 U.S. 140, 148-54, 99 S.Ct. 2213, 2220-23, 60 L.Ed.2d 777 (1979); Clark v. Maggio, 737 F.2d 471, 473 n. 6 (5th Cir.1984), cert. denied, 470 U.S. 1055, 105 S.Ct. 1761, 84 L.Ed.2d 823 (1985); Price v. King, 714 F.2d 585, 587 (5th Cir.1983). . 705 F.2d 113, 115-17 (5th Cir.1983), cert. denied, 471 U.S. 1104, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985). . Id. at 116. . State v. Lindsey, 428 So.2d 420, 423 n. 1 (La.), cert. denied, 464 U.S. 908, 104 S.Ct. 261, 78 L.Ed.2d 246 (1983); State v. Berry, 391 So.2d 406, 416 (La.1980), cert. denied, 451 U.S. 1010, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981); State v. Sonnier, 379 So.2d 1336, 1371 (La.1980) (on rehearing), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983); see also La.Sup. Ct.R. 28, § 1. . See Kirkpatrick v. Blackburn, 777 F.2d 272, 282-83 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986); Cook v. Bordenkircher, 602 F.2d 117, 120-21 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979). . See Kirkpatrick v. Blackburn, 777 F.2d at 281; Whittington v. Estelle, 704 F.2d 1418, 1421-22 (5th Cir.), cert. denied, 464 U.S. 983, 104 S.Ct. 428, 78 L.Ed.2d 361 (1983); Houston v. Estelle, 569 F.2d 372, 382-83 (5th Cir.1978). . See, e.g., Kirkpatrick v. Blackburn, 777 F.2d at 282-83; cf. United States v. Saenz, 747 F.2d 930, 939-42 (5th Cir.1984), cert. denied sub nom. Solis v. United States, 473 U.S. 906, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985). EDITH H." }, { "docid": "11686029", "title": "", "text": "denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 241 (1984); Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir.1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982). . 466 U.S. at 691, 104 S.Ct. at 2066. . 788 F.2d 1101 (5th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1292, 94 L.Ed.2d 148 (1987). . 693 F.2d 1243 (5th Cir.1982), rev’d on other grounds, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Id. at 1256. . See Baldwin v. Maggio, 704 F.2d 1325, 1328-29 (5th Cir.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2669, 81 L.Ed.2d 374 (1984). . La.Code Crim.Proc.Ann. art. 905.5 (West 1986). . See La.Code Crim.Proc.Ann. art. 905.3 (West 1986); State v. Jones, 474 So.2d 919, 932 (La. 1985), cert. denied, — U.S. -, 106 S.Ct. 2906, 90 L.Ed.2d 993 (1986); State v. Welcome, 458 So.2d 1235, 1246 (La.1983), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 152 (1985). . Compare Jones v. Thigpen, 788 F.2d at 1103 with Glass v. Blackburn, 791 F.2d 1165, 1170-71 (5th Cir.), stay granted, — U.S. -, 107 S.Ct. 29, 92 L.Ed.2d 779 (1986); Celestine v. Blackburn, 750 F.2d at 357-58; Willie v. Maggio, 737 F.2d 1372, 1394 (5th Cir.1984). . Compare with Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir.1985), cert. dismissed, — U.S. -, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986); Willie v. Maggio, 737 F.2d at 1394. . 754 F.2d 258 (8th Cir.), cert. denied, — U.S. -, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). . 793 F.2d 672, 676-77 (5th Cir.), stay granted, — U.S. -, 107 S.Ct. 37, 92 L.Ed.2d 789 (1986). See also Wingo v. Blackburn, 783 F.2d 1046, 1051 (5th Cir.), stay granted, — U.S. -, 107 S.Ct. 9, 92 L.Ed.2d 765 (1986). . 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). . 679 F.2d 381 (5th Cir.1982) (en banc) (dissented from by Randall, J., joined by Rubin, Politz, and Williams, JJ.), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). . Id. at 389; Zant, 462 U.S." }, { "docid": "12110968", "title": "", "text": "this panel, I would remand the question of the prejudice caused by the Lockett error to the district court. HATCHETT, Circuit Judge, concurring in part and dissenting in part: Although I concur in Parts I and III of the majority’s opinion, I respectfully dissent from Part II of the opinion. In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the Supreme Court held that the eighth amendment forbids imposition of the death penalty on “one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Enmund, 458 U.S. at 797, 102 S.Ct. at 3376-77. In determining that Ruffin’s Enmund' claim fails, the majority reasons that “when the jury found petitioner guilty of murder, it necessarily determined as a fact that petitioner killed with premeditation; in other words the jury found that he intended the victim’s death.” Ante at 1517. Moreover, the majority reasons, “[l]ogic suggests that the finding of intent implicit in a verdict of premeditated murder should suffice.” Ante at 1517. The majority’s reasoning is predicated on a false premise. The Supreme Court has made it clear that “ ‘Enmund does not affect [a] state’s definition of a substantive offense, even a capital offense.’ ” Cabana v. Bullock, 474 U.S. 376, 385, 106 S.Ct. 689, 696, 88 L.Ed.2d 704, 715 (1986) (quoting Reddix v. Thigpen, 728 F.2d 705, 709 (5th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984)). Additionally, in Cabana, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), the Court stated that “Enmund does not concern the guilt or innocence of the defendant — it establishes no new elements of the crime of murder that must be found by the jury.” Cabana, 474 U.S. at 385, 106 S.Ct. at 696, 88 L.Ed.2d at 715. Rather, the Court continued, En-mund concerns only that class of persons who, although guilty of capital murder as defined by state" }, { "docid": "18558392", "title": "", "text": "affidavit made out by Michael who thereafter escaped from prison preventing the state from propounding interrogatories to him. The argument is plausible, but it proves on analysis to be irrelevant. Whether Michael would or would not ultimately have incriminated Leo, as Arrington testified, is not the issue. The lawyer who represented both was torn in his loyalty and unable to make a decision purely in the interest of one client to whom he owed undivided allegiance. For these reasons, the judgment is AFFIRMED. . 661 F.2d 391 (5th Cir.1981) (Johnson, J.), cert. denied. 456 U.S. 1011. 102 S.Ct. 2307. 73 L.Ed.2d 1308 (1982). . 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Cuyler, 446 U.S. at 348, 100 S.Ct. at 1719, 64 L.Ed.2d at 346. . United States v. Carr, 740 F.2d 339, 348 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985) (quoting Foxworth v. Wainwright, 516 F.2d 1072,' 1076 (5th Cir. 1975)). . 661 F.2d 391 (5th Cir.1981) (Johnson, J.), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). . Id. at 397; see also Barham v. United States, 724 F.2d 1529, 1531 (11th Cir.1984); Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir.), cert. denied, 459 U.S. 912, 103 S.Ct. 222, 74 L.Ed.2d 176 (1982). . Baty, 661 F.2d at 397 n. 13. . Id. at 397. . Strickland, 466 U.S. at -, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. . Id. at -, 104 S.Ct. at 2068, 80 L.Ed.2d at 697. . Id. at -, 104 S.Ct. at 2067, 80 L.Ed.2d at 696 (quoting Cuyler, 446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718 (footnote omitted) (emphasis added)). . See United States v. Carr, 740 F.2d 339, 348 (5th Cir. 1984); United States v. Benavidez, 664 F.2d 1255, 1259 & n. 3 (5th Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1352 (1982). . See Stevenson v. Newsome, 774 F.2d 1558, 1562 (11th Cir.1985); Ruffin v. Kemp, 767 F.2d" }, { "docid": "3164699", "title": "", "text": "—, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. . 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140, 1151 (1982). . Reddix v. Thigpen, 728 F.2d 705, 708 (5th Cir.), cert. denied, — U.S. —, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). . Id. . Reddix v. Thigpen, 728 F.2d at 708. See also Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984); Bullock v. Lucas, 743 F.2d 244, 247 (5th Cir.1984) , cert. granted sub nom., Cabana v. Bullock, — U.S. —, 105 S.Ct. 2110, 85 L.Ed.2d 476 (1985). . La.Rev.Stat.Ann. § 14:24 (West 1974). See also State v. Watson, 397 So.2d 1337, 1342 n. 10 (La.), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981). . See La.Rev.Stat.Ann. § 14:30 (West Supp.1985) . . State v. Kirkpatrick, 443 So.2d 546, 552 (La.1983). . 728 F.2d 705, 707 (5th Cir.), cert. denied, — U.S. —, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). . Id. at 708-09. . Id. at 709. . 743 F.2d 244 (5th Cir.1984), cert. granted sub nom., Cabana v. Bullock, — U.S. —, 105 S.Ct. 2110, 85 L.Ed.2d 476 (1985). . 694 F.2d 75 (5th Cir.1982). . La.Rev.Stat.Ann. § 14:30 (West Supp.1985). . Clark, 694 F.2d at 76. . Enmund, 458 U.S. at 799, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152. . Id. . Id. at 800, 102 S.Ct. at 3378, 73 L.Ed.2d at 1153. ALVIN B. RUBIN, Circuit Judge, dissenting in part. I respectfully dissent from Part IIIB of the opinion, which holds that the prosecutor’s remarks at the sentencing hearing did not deny Kirkpatrick due process when he was sentenced to death. Even if any one of the prosecutor’s comments was not egregious, the cumulative effect of his arguments was sufficient to deprive the accused of the rational sentencing proceeding to which due process entitled him. Because death is so fundamentally different from other kinds of punishment, the Constitution requires, by means of procedural safeguards and judicial vigilance, assurance that the imposition of death is not the product of arbitrariness or caprice. At a sentencing hearing in a" }, { "docid": "13525700", "title": "", "text": ". See id. at 594. . Tasco v. Butler, 835 F.2d 1120 (5th Cir.1988); Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983). . See State v. Spencer, 446 So.2d 1197, 1200 (La.1984); State v. Qualls, 377 So.2d 293, 298 (La.1979). . State v. Evans, 506 So.2d 1283, 1287 (La.App.1987). . See Rollins v. Maggio, 711 F.2d 592, 593 (5th Cir.1983). . See Sykes, 433 U.S. at 74, 97 S.Ct. at 2499-2500. . Allen v. Hardy, 478 U.S. 255, 257, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986). . Engle v. Isaac, 456 U.S. 107, 131, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). . 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). . Id. at 220-26, 85 S.Ct. at 835-39. . Id. . Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982). . State v. Sonnier, 402 So.2d 650, 658-59 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). . See Wilson v. Butler, 813 F.2d 664, 673-74, reh’g granted on other grounds, 825 F.2d 879 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1059, 98 L.Ed.2d 1021 (1988). Judges Rubin and King continue to adhere to their dissent in Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). . Id. (citations omitted). . _ U.S. _, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). . See 108 S.Ct. at 1989. . Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). . Id. at 690, 104 S.Ct. at 2066. . Id. at 694, 104 S.Ct. at 2068. . Id. at 690, 104 S.Ct. at 2066. . 438 U.S. at 602, 605, 98 S.Ct. at 2963, 2965, 57 L.Ed.2d 973 (1978). . See State v. Sonnier, 402 So.2d 650, 657 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). . Mills v. Maryland, _ U.S. _, 108 S.Ct. 1860, 1866, 100 L.Ed.2d 384 (1988) (quoting Francis v. Franklin, 471 U.S. 307, 315-16, 105 S.Ct. 1965," }, { "docid": "21845455", "title": "", "text": "finding that Enmund had any intention of participating in or facilitating a murder,” id. at 3377, the United States Supreme Court held that his sentence of death violated the eighth amendment. 2. Although the Court in Enmund outlined a minimum threshold beneath which the defendant’s culpability must not fall if the death penalty is to be imposed, it did not delineate how or by whom the determination was to be made. Relying on cases holding that the question of the defendant’s guilt is solely for the jury, see, e.g., Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 614, 90 L.Ed. 350 (1946), appellant contends that the determination of whether the defendant’s culpability satisfies Enmund must be made by the jury and not by an appellate court from the record. Appellant notes that at least one other circuit has required that a new sentencing hearing be held where it is unclear from the jury’s verdict whether the jury found Enmund’s threshold of culpability satisfied. See Bullock v. Lucas, 743 F.2d 244 (5th Cir.1984), petition for cert. filed, 53 U.S.L.W. 3568 (U.S. Jan. 29, 1985) (No. 84-1236); Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984), petition for cert. filed, 53 U.S.L.W. 3568 (U.S. Jan. 30, 1985) (No. 84-1237); Reddix v. Thigpen, 728 F.2d 705 (5th Cir.), reh’g denied, 732 F.2d 494 (5th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); see also Garcia v. Illinois, — U.S.-, 104 S.Ct. 3555, 82 L.Ed.2d 856 (1984) (Marshall, J., dissenting from denial of certiorari). But see State v. Tison, 142 Ariz. 446, 690 P.2d 747, 748-49 (1984) (en banc); People v. Garcia, 97 Ill.2d 58, 73 Ill.Dec. 414, 454 N.E.2d 274, 284-85 (1983), cert. denied, — U.S. -, 104 S.Ct. 3555, 82 L.Ed.2d 856 (1984). In our opinion, the question of whether the defendant’s culpability satisfies the eighth amendment is sufficiently distinct from the question of the defendant’s guilt that a specific jury finding is not constitutionally required. The necessity of ensuring that the jury finds every element of the crime beyond a reasonable doubt focuses on procedural" }, { "docid": "3164698", "title": "", "text": "721 F.2d 1193, 1195 (9th Cir.1983), cert. denied, — U.S. —, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984). . The federal district judge cited Fulford v. Maggio, 692 F.2d 354, 359 (5th Cir.1982), rev’d on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983). . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Id. at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 692. . Id. at —, 104 S.Ct. at 2069-70, 80 L.Ed.2d at 699; Willie v. Maggio, 737 F.2d 1372, 1392 (5th Cir.1984). . 466 U.S. at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 692. See also McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763, 773 n. 14 (1970) (the right to counsel is the right to effective assistance of counsel). . Strickland, 466 U.S. at —, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. . Id. at —, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. . Id. . Id. . Id. . Id. at —, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. . 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140, 1151 (1982). . Reddix v. Thigpen, 728 F.2d 705, 708 (5th Cir.), cert. denied, — U.S. —, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). . Id. . Reddix v. Thigpen, 728 F.2d at 708. See also Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984); Bullock v. Lucas, 743 F.2d 244, 247 (5th Cir.1984) , cert. granted sub nom., Cabana v. Bullock, — U.S. —, 105 S.Ct. 2110, 85 L.Ed.2d 476 (1985). . La.Rev.Stat.Ann. § 14:24 (West 1974). See also State v. Watson, 397 So.2d 1337, 1342 n. 10 (La.), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981). . See La.Rev.Stat.Ann. § 14:30 (West Supp.1985) . . State v. Kirkpatrick, 443 So.2d 546, 552 (La.1983). . 728 F.2d 705, 707 (5th Cir.), cert. denied, — U.S. —, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). . Id. at 708-09. . Id. at 709. . 743 F.2d 244 (5th Cir.1984), cert. granted sub" }, { "docid": "18558393", "title": "", "text": "F.2d 391 (5th Cir.1981) (Johnson, J.), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). . Id. at 397; see also Barham v. United States, 724 F.2d 1529, 1531 (11th Cir.1984); Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir.), cert. denied, 459 U.S. 912, 103 S.Ct. 222, 74 L.Ed.2d 176 (1982). . Baty, 661 F.2d at 397 n. 13. . Id. at 397. . Strickland, 466 U.S. at -, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. . Id. at -, 104 S.Ct. at 2068, 80 L.Ed.2d at 697. . Id. at -, 104 S.Ct. at 2067, 80 L.Ed.2d at 696 (quoting Cuyler, 446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718 (footnote omitted) (emphasis added)). . See United States v. Carr, 740 F.2d 339, 348 (5th Cir. 1984); United States v. Benavidez, 664 F.2d 1255, 1259 & n. 3 (5th Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1352 (1982). . See Stevenson v. Newsome, 774 F.2d 1558, 1562 (11th Cir.1985); Ruffin v. Kemp, 767 F.2d 748, 751 & n. 6 (11th Cir.1985); Burger v. Kemp, 753 F.2d 930, 942 (11th Cir.1985) (Johnson, J., dissenting). . See Baty, 661 F.2d at 397 n. 13 & at 398 (Fay, J., specially concurring). . 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697 (1984) (showing of prejudice equals showing of \"reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”). . Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719, 64 L.Ed.2d at 347; accord Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. . 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696; see also Baty, 661 F.2d at 396 (quoting Holloway v. Arkansas, 435 U.S. 475, 490-91, 98 S.Ct. 1173, 1181-82, 55 L.Ed.2d 426 (1978). . Turnquest v. Wainwright, 651 F.2d 331, 334 (5th Cir.1981); see also Ruffin v. Kemp, 767 F.2d 748, 751-52 (11th Cir.1985). . Baty, 661 F.2d at 397 n. 13. . Id." }, { "docid": "13525698", "title": "", "text": "Cir.), cert. denied, — U.S. —, 109 S.Ct. 248, 102 L.Ed.2d 236 (1988); Thompson v. Lynaugh, 821 F.2d 1080 (5th Cir.), cert. denied, — U.S. —, 108 S.Ct. 5, 97 L.Ed.2d 794 (1987). . Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). . United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985). . See United States v. Register, 496 F.2d 1072, 1081 (5th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 819 (1975). . Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. . Franklin v. Lynaugh, _ U.S. _, 108 S.Ct. 2320, 2327-28, 101 L.Ed.2d 155 (1988). . Berger v. U.S., 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). . Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 210, 98 L.Ed.2d 161 (1987). . Id. . Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986). . See United States v. Caballero, 712 F.2d 126, 131 (5th Cir.1983). . Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). . Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 2646, 86 L.Ed.2d 231 (1985). . Id.. . State v. Jones, 474 So.2d 919, 931-32 (La.1985). . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). . Id. . La.Rev.Stat.Ann. 14:30(A)(1). . Wainwright v. Witt, 469 U.S. 412, 430, 105 S.Ct. 844, 855, 83 L.Ed.2d 841 (1985). . 28 U.S.C. § 2254(d)(8). . 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . Id. at 95-99, 106 S.Ct. at 1722-24. . Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). . 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977). . Preston v. Maggio, 705 F.2d 113, 115 (5th Cir.1983). . See Tasco v. Butler, 835 F.2d 1120, 1122 (5th Cir.1988). . Rollins v. Maggio, 711 F.2d 592, 593 (5th Cir.1983)." }, { "docid": "13525699", "title": "", "text": ". See United States v. Caballero, 712 F.2d 126, 131 (5th Cir.1983). . Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). . Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 2646, 86 L.Ed.2d 231 (1985). . Id.. . State v. Jones, 474 So.2d 919, 931-32 (La.1985). . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). . Id. . La.Rev.Stat.Ann. 14:30(A)(1). . Wainwright v. Witt, 469 U.S. 412, 430, 105 S.Ct. 844, 855, 83 L.Ed.2d 841 (1985). . 28 U.S.C. § 2254(d)(8). . 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . Id. at 95-99, 106 S.Ct. at 1722-24. . Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). . 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977). . Preston v. Maggio, 705 F.2d 113, 115 (5th Cir.1983). . See Tasco v. Butler, 835 F.2d 1120, 1122 (5th Cir.1988). . Rollins v. Maggio, 711 F.2d 592, 593 (5th Cir.1983). . See id. at 594. . Tasco v. Butler, 835 F.2d 1120 (5th Cir.1988); Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983). . See State v. Spencer, 446 So.2d 1197, 1200 (La.1984); State v. Qualls, 377 So.2d 293, 298 (La.1979). . State v. Evans, 506 So.2d 1283, 1287 (La.App.1987). . See Rollins v. Maggio, 711 F.2d 592, 593 (5th Cir.1983). . See Sykes, 433 U.S. at 74, 97 S.Ct. at 2499-2500. . Allen v. Hardy, 478 U.S. 255, 257, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986). . Engle v. Isaac, 456 U.S. 107, 131, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). . 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). . Id. at 220-26, 85 S.Ct. at 835-39. . Id. . Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982). . State v. Sonnier, 402 So.2d 650, 658-59 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). . See Wilson v. Butler, 813 F.2d 664, 673-74, reh’g granted on other" } ]

[ { "docid": "23493791", "title": "", "text": "be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). . While the appeals of the district court’s summary judgment decisions were pending, the district court granted Lahr’s motion for attorneys’ fees, awarding him $146,442 in costs and fees. The government has appealed this award, arguing that, if it prevails on its appeal of the summary judgment decisions, the fee award should be vacated and remanded to the district court for a new determination. Because we reverse part of the district court’s summary judgment order, we remand the award of attorneys’ fees for reconsideration. . Because the privacy interests of the eyewitnesses and FBI agents differ, we discuss the interests of each in turn. . The district court observed that release of the unredacted documents would disclose only the names of eyewitnesses, and not their home addresses, phone numbers, or other personal information. In this regard, the information is less invasive than information some courts have protected to avoid third-party harassment. See, e.g., Bibles, 519 U.S. 355-56, 117 S.Ct. 795, 136 L.Ed.2d 825 (mailing lists); FLRA, 510 U.S. at 502, 114 S.Ct. 1006 (home addresses); Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep’t of Air Force, 26 F.3d 1479, 1484-85 (9th Cir.1994) (names, addresses, and payroll records). Nevertheless, the release of the witnesses’ names presumably is sufficient to enable Lahr to contact them; contacting the witnesses is precisely why he wants the infer mation. In fact, the ability to contact the witnesses with only their names formed the basis of the district court’s conclusion that their disclosure would advance the public interest: \"Disclosure might nevertheless assist Plaintiff in investigating and uncovering government malfeasance by, for instance, leading to individuals who might repudiate what the government attributed to them....” . Because FOIA contemplates that “if the information is subject to disclosure, it belongs to all,\" Favish, 541 U.S. at 172, 124 S.Ct. 1570, we must consider the effect of releasing the information to the general public and not just to the individual requestor. . The district court denied the" } ]

[ { "docid": "5194695", "title": "", "text": "offices in an effort to discover of one of them has any records” about him, and he deems “the FBI’s expectation in this regard” to be “obstructiveness clothed in plausible deniability.” Id. at 11. However, as the requester, it is plaintiffs responsibility to tell the FBI where responsive records might be located. In fact, DOJ regulations require that, if plaintiff believed that responsive records pertaining to activity in Tennessee existed, he must “write directly to that FBI ... field office address,” 28 C.F.R. § 16.3(a), rather than direct his request to FBIHQ. The FBI does not fail to meet its obligations under the FOIA by conducting a search of FBIHQ records only. See Brown v. FBI, 675 F.Supp.2d 122, 127 (D.D.C.2009) (dismissing a FOIA claim against the FBI because plaintiff failed to mail his request directly to the appropriate field office as is required under agency regulations). 3. The DEA’s Search DEA \"staff construed the FOIA request as one “seeking criminal investigative records held by DEA that pertained to or referenced” plaintiff. Little Decl. ¶ 25. “All criminal investigative records maintained by DEA about any individual that is of investigative interest are reasonably likely to be found in the DEA Investigative Reporting and Filing System (IRFS),” id. ¶ 26, and no other, id. ¶ 27. IRFS “contains all administrative, general and investigative files compiled by DEA for law enforcement, purposes.” Id. ¶ 28. The Narcotics and Dangerous Drugs Information System (“NADDIS”) is the index by which information is retrieved from IRFS. Id. “NADDIS lists the investigative file number(s) and particular DEA Report of Investigation (ROI), DEA Form-6, or other documents by date, that contain information regarding a particular individual.” Id. ¶ 29. An individual is indexed in NAD-DIS by his name, Social Security number, and date of birth. Id. Using plaintiffs name, Social Security number and date of birth as search terms, DEA' staff conducted a NADDIS query which yielded “two ... criminal investigative case file numbers, DEA Investigative Case File No[s]. GN-06-0019 and GN-86Z002.” Id. ¶ 30. Retrieved from these files were 31 pages of records, id. ¶ 31," }, { "docid": "18124407", "title": "", "text": "the effectiveness of the FBI,” id., the FBI withholds the cooperative witness file number. Employing a similar rationale, the DEA withholds Geographical Drug Enforcement Program (“G-DEP”) codes, NADDIS numbers, and a confidential informant number, all of which are “part of DEA’s internal system of identifying information and individuals.” Myrick Deck ¶ 46. A G-DEP code is assigned when the agency opens a case file and it is used to “indicate the classification of the violator, the types and amount of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 46.a. Release of G-DEP codes, the declarant explains, “would help [suspects] identify priority given to narcotic investigations, types of criminal activities involved, and violator ratings,” id. ¶47, allowing suspects to alter their behavior so as to avoid detection and otherwise thwart the DEA’s investigative and law enforcement efforts. Id. NADDIS numbers are “multi-digit numbers assigned to drug violators and suspected drug violators known to the DEA.” Myrick Deck ¶ 46.b. A NADDIS number is unique to the violator to whom it is assigned. Id. Informant identifier codes are assigned “to cooperating individuals and are used instead of their names in all DEA reports, memoranda and other internal correspondence.” Id. ¶ 46.c. “Knowledge of informant identifier codes can assist in identifying the informant and provide sensitive information about individuals who cooperate with DEA in carrying out its law enforcement functions.” Id. The Court concludes that the FBI and the DEA properly withheld the records just discussed under Exemption 2. The reference numbers assigned to witnesses and witness files, as well as G-DEP codes, NADDIS numbers and other such codes, are all within the scope of Exemption 2 and are properly withheld. See Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 486 (D.C.Cir.1980) (withholding “symbols used to refer to FBI informants in FBI documents and records”); Zavala v. Drug Enforcement Admin., 667 F.Supp.2d at 96-97 (withholding G-DEP codes and NADDIS numbers); Amuso v. U.S. Dep’t of Justice, 600 F.Supp.2d 78, 91 (D.D.C. 2009) (withholding confidential source file numbers assigned by the FBI);" }, { "docid": "8869561", "title": "", "text": "A G-DEP code is assigned to a case when it is opened, and it is used to “indicate the classification of the violator, the types and amount of suspect ed drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 34(a). NADDIS numbers are “multi-digit num bers assigned to drug violators and suspected drug violators known to the DEA.” Id. ¶ 34(b). The numbers are unique to the violators to whom they are assigned and are intended for the agency’s internal use. Id. According to Mr. Seidel, if a NADDIS number were disclosed, a requester would have “a means of finding out not only drug violator information about the subject but also personal information about [him], relatives and any third parties identifiable with the violator.” Id. Release of G-DEP codes could help a suspect “identify priority given to narcotic investigations, types of criminal activities, and violator ratings.” Id. ¶ 34(a). With this information, suspects could change their behavior so as to avoid detection and otherwise thwart the DEA’s investigative and law enforcement efforts. Id. G-DEP codes and NADDIS numbers fall within the scope of Exemption 2 and routinely are withheld. See, e.g., Bullock v. Fed. Bureau of Investigation, 577 F.Supp.2d 75, 81 (D.D.C.2008) (concluding that violator and informant identifier codes, including G-DEP codes and NAD-DIS numbers, properly are withheld under Exemption 2); Barbosa v. Dep’t of Justice, No. 06-0867, 2007 WL 1201604, at *6 (D.D.C. Apr. 23, 2007) (concluding that DEA properly withheld violator identifiers consisting of G-DEP codes, NADDIS numbers, and confidential informant numbers, which are part of the agency’s internal system of identifying information and individuals); Mendoza v. Drug Enforcement Admin., 465 F.Supp.2d 5, 10-11 (D.D.C.2006) (finding that “there is not a public interest sufficient to override the agency’s appropriate interest in maintaining the secrecy of ... internal procedures” regarding violator identifiers); Wilson v. Drug Enforcement Admin., 414 F.Supp.2d 5, 12-13 (D.D.C.2006) (concluding that G-DEP codes and NADDIS numbers properly are withheld as “high 2” exempt information, and that NADDIS numbers, insofar as they are part of the DEA’s internal" }, { "docid": "8869555", "title": "", "text": "information plaintiff provided with his request, including his Social Security number and the date and place of birth, DEA staff conducted NADDIS queries in February 2008 and January 2009. Each search produced the same result: one subject, RAUL SANCHEZ ZAVALA, who was arrested in Spokane, Washington on April 28, 2005, for delivery of methamphetamine. Id. ¶ 15. This individual was indexed in NADDIS under number 6082390, and was associated with investigative file number RH-04-0039. Id. The DEA Resident Office in Spokane, Washington maintained investigative file number RH-04-0039. Seidel Decl. ¶ 16. Its staff “conducted searches for responsive records from file number RH-04-0039” and compared the documents contained therein to documents contained in the EOUSA referral. Id. Where necessary, CCA staff “coordinated with the U.S. Attorney’s Office, Eastern District of Washington, to release documents directly to plaintiff in this action in lieu of returning select documents back to EOUSA for reply to plaintiff.” Id. The DEA identified 285 pages of responsive material, representing the results of both the DEA’s searches and the EOUSA’s referral. Seidel Decl. ¶¶ 17, 56. After having identified duplicate pages, the DEA released 108 pages in full, released 102 pages in part, and withheld 75 pages in full. Id. ¶ 17. Plaintiffs sole challenge to the adequacy of the DEA’s search for responsive records appears to be its failure to disclose two documents: (1) a document plaintiff signed “[o]n or about the months of September or October of 2005, and in the presence of Plaintiffs former trial attorney,” Decl. In Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Decl.”) ¶ 1; and (2) one ROI “prepared on or about April 28, 2005, hours or days immediately after Plaintiffs arrest” by Agent Joseph Pence. Id. ¶ 42. It is settled law that the results of a search do not determine whether the search is adequate. See Hornbostel v. United States Dep’t of the Interior, 305 F.Supp.2d 21, 28 (D.D.C.2003) (stating that “[t]he focus of the adequacy inquiry is not on the results” of the search). “[T]he issue to be resolved is not whether there might exist any other" }, { "docid": "20505744", "title": "", "text": "could reasonably be expected to risk circumvention of the law.’ ” Id. at 327 (quoting 5 U.S.C. § 552(b)(7)(E)). D.C. Circuit precedent “sets a relatively low bar for the agency to justify withholding” information under FOIA Exemption 7(E). Blackwell, 646 F.3d at 42. The exemption allows for withholding information “not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.” Id. (quoting Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190, 1193 (D.C.Cir.2009)). i. DEA The DEA withholds Geographical Drug Enforcement Program (“G-DEP”) and Narcotics and Dangerous Drug (“NADDIS”) violator identifier codes under FOIA Exemption 7(E). Myriek Decl. ¶ 75. The declarant explains that G-DEP codes are assigned to all DEA cases at the time the case file is opened and indicate the classification of the violator(s), the types and amount of suspected drugs involved, the priority of the investigation and suspected location and scope of criminal activity.” Id. ¶ 78. “NADDIS numbers are multi-digit numbers assigned to drug violators and suspected drug violators known to DEA and entities that are of investigative interest.” Id. ¶ 79. Each NADDIS number is unique to a particular violator. Id. If the DEA were to release G-DEP codes, the declarant states, “[s]us-pects could decode ... information” to “identify priority given to narcotic investigations, types of criminal activities involved, and violator ratings,” and thus “change their pattern of drug trafficking in an effort to ... avoid detection and apprehension.” Id. ¶ 80. Disclosure of NAD-DIS numbers and informant identifier codes, which “are unique and personal to the individual to whom the number applies, ... could allow violators to avoid apprehension ] and could place law enforcement personnel in danger, since the details of many aspects of a DEA investigation would be disclosed.” Id. ¶ 81. Disclosure of “details of DEA investigations” would" }, { "docid": "8869560", "title": "", "text": "F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner v. Dep’t of the Air Force, 898 F.2d at 794 (citations omitted). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir.1992). “High 2” exempt information is “not limited ... to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the material at issue merely relates to trivial administrative matters of no genuine public interest, it is deemed “low 2” exempt material. See Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830-31 n. 4 (D.C.Cir.1983). a. G-DEP Codes and NADDIS Numbers The DEA withholds Geographical Drug Enforcement Program (“G-DEP”) codes and NADDIS numbers, part of the DEA’s internal system of identifying information and individuals, under Exemption 2. Seidel Decl. ¶ 34. A G-DEP code is assigned to a case when it is opened, and it is used to “indicate the classification of the violator, the types and amount of suspect ed drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 34(a). NADDIS numbers are “multi-digit num bers assigned to drug violators and suspected drug violators known to the DEA.” Id. ¶ 34(b). The numbers are unique to the violators to whom they are assigned and are intended for the agency’s internal use. Id. According to Mr. Seidel, if a NADDIS number were disclosed, a requester would have “a means of finding out not only drug violator information about the subject but also personal information about [him], relatives and any third parties identifiable with the violator.” Id. Release of G-DEP codes could help a suspect “identify priority given to narcotic investigations, types of criminal activities, and violator ratings.” Id. ¶ 34(a). With this information, suspects could change their behavior so as to avoid detection and otherwise thwart the" }, { "docid": "18124398", "title": "", "text": "of file number 245F-JN-25002, and then was able to determine that the file in fact was responsive to plaintiffs request. Id. ¶ 34. Its ELSUR search yielded no responsive records. Id. ¶ 35. 3. DEA The DEA interprets plaintiffs request “broadly ... as a request for any and all criminal investigative information about himself,” and deemed its Investigative Reporting and Filing System (“IFRS”), which contains all criminal investigative files compiled by the DEA, the place were responsive records likely would be found. Myrick Decl. ¶ 25. In order to retrieve information from IFRS, one uses the Narcotics and Dangerous Drugs Information System (“NADDIS”), an index which “points to investigative files and particular Reports of Information (“ROIs”) or other documents ... containing] information regarding a particular individual or subject of an investigation.” Id. ¶ 26. “Individuals are indexed and identified in NADDIS by their name, Social Security Number, and/or date of birth.” Id. DEA staff conducted a NADDIS query using plaintiffs name, Social Security number, and date of birth as search terms, and six criminal investigative files were located. Myrick Deck ¶ 27. One “defendant” file pertained to plaintiff, and five “related” files pertained to other individuals. Id. The DEA processed the “defendant” file at no charge to plaintiff. Id. Plaintiff presents no challenge to any of the components’ searches for records responsive to the FOIA requests relevant to this action. Rather, he devotes his opposition principally to defendant’s failure to search for and produce medical records of two DEA Special Agents who were injured by shotgun pellets in the course of execution of a search warrant and the FBI’s response to FOIA Request No. 1011170-000 submitted in December 2004. See Pl.’s Opp’n at 6-17. But these matters are not a part of this case. Nowhere in the complaint does plaintiff mention either a request for third parties’ medical records or the December 2004 FOIA request, so the Court will not address these matters further. Absent any meaningful opposition to defendant’s motion with respect to the searches for records responsive to plaintiffs FOIA requests, and based on the defendant’s supporting declarations," }, { "docid": "20505728", "title": "", "text": "course of a DEA investigation” relating to either the case subject or to “other individuals .... suspected of engaging in criminal activity in association with the subject of the file.” Id. The DEA office commencing an investigation establishes the investigative case file, and its title is “the name of the principal suspect violator or entity known to DEA at the time the file is opened.” Id. ¶ 22. “NADDIS is the index to and practical means by which DEA retrieves investigative reports and information from IRFS.” Id. ¶ 24. An individual is “indexed and identified in NADDIS by [his] name, social security number and/or date of birth.” Id. ¶ 25. A NADDIS query generates “a list of investigative file number(s) and particular DEA Report[s] of Investigation ... or other documents by date regarding a particular individual or entity.” Id. ¶ 24. The DEA initially construed plaintiffs FOIA request as one “not seeking a single report,’ but instead “seeking all criminal investigative records that referenced plaintiffs name contained in DEA Investigative Case File No. M6-04-0273.” Myrick Decl. ¶ 15. Staff then conducted a search of that investigative file “for all reports and documents that referenced plaintiffs name.” Id. ¶ 16. Subsequently, using plaintiffs name, date of birth and social security number as search terms, DEA staff queried NADDIS and identified “four ... investigative case files, including DEA Investigative Case File No. M6-04-0273, that could contain reports and other documents referencing plaintiff.” Id. ¶ 17. A search of Investigative Case File No. M6-04-0273 yielded 73 pages of records. Id. ¶ 18. As litigation progressed, “it was noted that plaintiffs FOIA request sought ‘any other investigative reports filed by any other federal agent.’ ” Id. ¶ 19. His request then was construed as one “seeking all investigative reports maintained by DEA that referenced [him] by name.” Id. Staff searched the three remaining investigative files and located an additional 489 pages of potentially responsive records. Id. Plaintiffs opposition to defendant’s motion is silent as to the adequacy of the DEA’s search for responsive records, See generally Am. Resp. to Def.’s Mot. for Summ. J." }, { "docid": "20505727", "title": "", "text": "Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (internal quotation marks and citations omitted). An agency must “demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)). The agency may submit affidavits or declarations that explain in reasonable detail the scope and method of its search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). “The issue is not whether any further documents might conceivably exist but rather whether the government’s search for responsive documents was adequate.” Id. at 128. The DEA’s declarant explains that the “[c]riminal investigative files maintained by DEA about individuals ... of investigative interest are reasonably likely to be found in the DEA Investigative Reporting and Filing System (TRFS’).” Myrick Decl. ¶ 20. IRFS “contains all administrative, general and investigative files compiled by DEA for law enforcement purposes.” Id. ¶ 21. Investigative case files maintained therein include “[a]ll information compiled during the course of a DEA investigation” relating to either the case subject or to “other individuals .... suspected of engaging in criminal activity in association with the subject of the file.” Id. The DEA office commencing an investigation establishes the investigative case file, and its title is “the name of the principal suspect violator or entity known to DEA at the time the file is opened.” Id. ¶ 22. “NADDIS is the index to and practical means by which DEA retrieves investigative reports and information from IRFS.” Id. ¶ 24. An individual is “indexed and identified in NADDIS by [his] name, social security number and/or date of birth.” Id. ¶ 25. A NADDIS query generates “a list of investigative file number(s) and particular DEA Report[s] of Investigation ... or other documents by date regarding a particular individual or entity.” Id. ¶ 24. The DEA initially construed plaintiffs FOIA request as one “not seeking a single report,’ but instead “seeking all criminal investigative records that referenced plaintiffs name contained in DEA Investigative Case File No. M6-04-0273.” Myrick" }, { "docid": "5194720", "title": "", "text": "protects from disclosure law enforcement records “to the extent that the production of such ... information ... would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Courts have held that information pertaining to law enforcement techniques and procedures properly is withheld under Exemption 7(E) where disclosure reasonably could lead to circumvention of laws or regulations. See, e.g., Morley v. CIA, 453 F.Supp.2d 137, 157 (D.D.C.2006) (approving the withholding of information -pertaining to security clearances and background investigations on the ground that “disclosure of CIA security clearance and investigatory processes would risk circumvention of those processes in the future”), rev’d on other grounds, 508 F.3d 1108 (D.C.Cir.2007). DEA withholds “violator identifiers” known as “G-DEP (Geographical Drug Enforcement Program) codes and NAD-DIS numbers,” which are “part of DEA’s internal system of identifying information and individuals” and which “reflect procedures prescribed by the DEA Agents Manual,” Little Decl. ¶ 66, under Exemption 7(E). A G-DEP code is assigned to a case when a case file is opened, and it “indicated] the classification of the violators), the types and amount of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 69. If a G-DEP code were released, the declarant explains, “[s]uspects could decode this information, change their behavior of drug trafficking in an effort to respond to what they determined DEA knows about them or avoid detection and apprehension, and allow them to create alibis for suspected activities.” Id. In short, disclosure “would ... thwart [DEA’s] investigative and law enforcement efforts.” Id. A NADDIS number is a multi-digit number assigned to a drug- violator, suspected drug violator, or entity of investigative interest to the DEA. Id. ¶ 70. The number is unique to the violator to whom it is assigned, id., and therefore is “personal to the individual to whom it is applied.” Id. ¶ 71. “Because of the manner in which NADDIS numbers are" }, { "docid": "5194722", "title": "", "text": "assigned and methods for which they are used, release of the information could allow violators to avoid apprehension, and could place law enforcement personnel or informants in danger, since many details of a DEA investigation would be disclosed,” the declarant ex plains. Id. ¶ 72. “[Vjiolators would be aware of how to respond in different situations where detection and/or apprehension are eminent [sic].” Id. In light of the Supreme Court’s ruling in Milner v. Dep’t of the Navy, - U.S. -, -, 131 S.Ct. 1259, 1264-71, 179 L.Ed.2d 268 (2011), plaintiff argues that DEA must release G-DEP codes and NADDIS numbers, notwithstanding its subjective belief that the release of G-DEP and/or NAD-DIS material will allow all of the drug-dealing villains out there to circumvent federal controlled substances laws and the DEA’s investigatory efforts in that regard.” Pl.’s Opp’n at 16. “Conspicuously absent from the DEA’s arguments would be any attempt to describe the techniques or procedures being protected other than the G-DEP and NADDIS materials.” Id. (emphasis in original). Plaintiff objects to these withholdings based on a rationale that DEA no longer asserts. Notwithstanding the agency’s prior reliance on Exemption 2 to protect G-DEP and NAD-DIS codes, see Little Decl. ¶ 65 n.ll, the agency now relies solely on Exemption 7(E), see id. ¶¶ 66-72. Its decision is appropriate in light of the Milner decision. See Miller v. U.S. Dep’t of Justice, 872 F.Supp.2d 12, 29 (D.D.C.2012) (finding that NADDIS numbers are properly withheld under Exemption 7(E)); see also Adionser v. U.S. Dep’t of Justice, No. 11-5093, 2012 WL 5897172, at *2 (D.C.Cir. Nov. 5, 2012) (per curiam) (remanding “for further proceedings with respect to the Geographical Drug Enforcement Program codes withheld by DEA pursuant to ... Exemption 2 ... to allow the government to brief the issue whether ... Exemption 7(E) ... applies to the material”). D. Segregability If a record contains some information that is exempt from disclosure, any reasonably segregable information must be released after deleting the exempt portions, unless the nonexempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans-Pacific Policing Agreement" }, { "docid": "18124408", "title": "", "text": "the violator to whom it is assigned. Id. Informant identifier codes are assigned “to cooperating individuals and are used instead of their names in all DEA reports, memoranda and other internal correspondence.” Id. ¶ 46.c. “Knowledge of informant identifier codes can assist in identifying the informant and provide sensitive information about individuals who cooperate with DEA in carrying out its law enforcement functions.” Id. The Court concludes that the FBI and the DEA properly withheld the records just discussed under Exemption 2. The reference numbers assigned to witnesses and witness files, as well as G-DEP codes, NADDIS numbers and other such codes, are all within the scope of Exemption 2 and are properly withheld. See Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 486 (D.C.Cir.1980) (withholding “symbols used to refer to FBI informants in FBI documents and records”); Zavala v. Drug Enforcement Admin., 667 F.Supp.2d at 96-97 (withholding G-DEP codes and NADDIS numbers); Amuso v. U.S. Dep’t of Justice, 600 F.Supp.2d 78, 91 (D.D.C. 2009) (withholding confidential source file numbers assigned by the FBI); Barbosa v. Dep’t of Justice, No. 06-0867, 2007 WL 1201604, at *3 (D.D.C. Apr. 23, 2007) (withholding violator identifiers consisting of G-DEP codes, NADDIS numbers, and confidential informant numbers which ai*e part of the agency’s internal system of identifying information and individuals); Wilson v. Drug Enforcement Admin., 414 F.Supp.2d 5, 12-13 (D.D.C.2006) (withholding G-DEP codes and NADDIS numbers as “high 2” exempt information, and withholding NADDIS numbers as “low 2” exempt information insofar as they are part of the DEA’s internal system of identifying information in which there is no public interest). 2. Exemption 3 Exemption 3 protects records that are “specifically exempted from disclosure by statute ... provided that such statute (A) [requires withholding] in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Under Exemption 3, the BATFE withholds Firearms Trace Reports and Federal Firearms Licensees (“FFL”) Acquisition and Disposition Records. Graham Decl. ¶¶49, 50. The Consolidated Appropriations Act of" }, { "docid": "5194721", "title": "", "text": "66, under Exemption 7(E). A G-DEP code is assigned to a case when a case file is opened, and it “indicated] the classification of the violators), the types and amount of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 69. If a G-DEP code were released, the declarant explains, “[s]uspects could decode this information, change their behavior of drug trafficking in an effort to respond to what they determined DEA knows about them or avoid detection and apprehension, and allow them to create alibis for suspected activities.” Id. In short, disclosure “would ... thwart [DEA’s] investigative and law enforcement efforts.” Id. A NADDIS number is a multi-digit number assigned to a drug- violator, suspected drug violator, or entity of investigative interest to the DEA. Id. ¶ 70. The number is unique to the violator to whom it is assigned, id., and therefore is “personal to the individual to whom it is applied.” Id. ¶ 71. “Because of the manner in which NADDIS numbers are assigned and methods for which they are used, release of the information could allow violators to avoid apprehension, and could place law enforcement personnel or informants in danger, since many details of a DEA investigation would be disclosed,” the declarant ex plains. Id. ¶ 72. “[Vjiolators would be aware of how to respond in different situations where detection and/or apprehension are eminent [sic].” Id. In light of the Supreme Court’s ruling in Milner v. Dep’t of the Navy, - U.S. -, -, 131 S.Ct. 1259, 1264-71, 179 L.Ed.2d 268 (2011), plaintiff argues that DEA must release G-DEP codes and NADDIS numbers, notwithstanding its subjective belief that the release of G-DEP and/or NAD-DIS material will allow all of the drug-dealing villains out there to circumvent federal controlled substances laws and the DEA’s investigatory efforts in that regard.” Pl.’s Opp’n at 16. “Conspicuously absent from the DEA’s arguments would be any attempt to describe the techniques or procedures being protected other than the G-DEP and NADDIS materials.” Id. (emphasis in original). Plaintiff objects to these withholdings based" }, { "docid": "18124406", "title": "", "text": "F.Supp.2d 41, 45 (D.D.C.2001) (withholding internal computer codes). The FBI withholds as “high 2” exempt information a cooperative witness file number, which is “unique to this particular cooperative witness and [which] is only used in documentation relating to this particular ... witness.” Hardy Decl. ¶ 46. Its declarant explains that a cooperating witness’ identity “is concealed until testimony is required at trial and who ... contributes substantial operational assistance to the resolution and/or direction of a case through active participation in the investigation.” Id. According to the declarant, release of the cooperative witness file number “could ultimately identify the source,” particularly if release is repeated along with information the witness provided, “narrowfing] the possibilities of the [source’s] true identity, endangering his/ her life and physical safety.” Id. ¶ 47. The witness expressly is granted confidentiality whether or not he or she appears in court. Id. “[B]ecause the cooperative wit ness file number is related solely to the FBI’s internal practices, because disclosure ... would not serve any public interest, and because disclosure ... would impede the effectiveness of the FBI,” id., the FBI withholds the cooperative witness file number. Employing a similar rationale, the DEA withholds Geographical Drug Enforcement Program (“G-DEP”) codes, NADDIS numbers, and a confidential informant number, all of which are “part of DEA’s internal system of identifying information and individuals.” Myrick Deck ¶ 46. A G-DEP code is assigned when the agency opens a case file and it is used to “indicate the classification of the violator, the types and amount of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 46.a. Release of G-DEP codes, the declarant explains, “would help [suspects] identify priority given to narcotic investigations, types of criminal activities involved, and violator ratings,” id. ¶47, allowing suspects to alter their behavior so as to avoid detection and otherwise thwart the DEA’s investigative and law enforcement efforts. Id. NADDIS numbers are “multi-digit numbers assigned to drug violators and suspected drug violators known to the DEA.” Myrick Deck ¶ 46.b. A NADDIS number is unique to" }, { "docid": "21838265", "title": "", "text": "enforcement data and potentially interfering with or altering [BAT-FE’s] Firearms Trace System Database.” Id. Thus, BATFE adequately justifies its decision to withhold these computer codes. See Boyd v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 496 F.Supp.2d 167, 171 (D.D.C.2007) (concluding that data displayed on screen prints of Treasury Enforcement Communications System properly withheld under Exemption 2); Truesdale v. United States Dep’t of Justice, No. 03-1332, 2005 WL 3273093, at *7 (D.D.C. July 22, 2005) (concluding that internal administrative codes used in criminal law enforcement databases properly withheld). c. DIA DIA withholds portions of six documents “because they contain office symbols, internal document or messaging codes, routing directions and telephone identifiers of U.S. government agencies and offices engaged in the collection of foreign intelligence information.” Defi’s Reply, Kinsey Decl. ¶ 19. These are the types of trivial internal information of no interest to the public properly withheld as “low 2” exempt material. See, e.g., Scherer, 584 F.2d at 175-76. d. DEA DEA withholds Geographical Drug Enforcement Program (“G-DEP”) codes and NADDIS numbers, part of DEA’s internal system of identifying information and individuals, under Exemption 2. Def.’s Reply, Declaration of Leila I. Wassom (“Wassom Decl.”) ¶33. A G-DEP code is assigned when the agency opens a case file and it is used to “indicate the classification of the violator, the types and amount of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 33(a). NADDIS numbers are “multi-digit numbers assigned to drug violators and suspected drug violators known to the DEA.” Id. ¶ 33(b). The numbers are unique to the violators to whom they are assigned. Id. If a NAD-DIS number were disclosed, a requester would have “a means of finding out not only drug violator information about the subject but also personal information about [the violator], relatives and any third parties identifiable with the violator.” Id. Release of G-DEP codes could help suspects decode information to identify priority given to narcotic investigations, types of criminal activities, and violator ratings. Id. ¶ 34. With this information, suspects could change their behavior" }, { "docid": "18124397", "title": "", "text": "been monitored by microphone installation or telephone surveillance, id. ¶29, as well as the names of persons mentioned during monitored conversations. Id. ¶ 26. One searches the CRS for records concerning a particular subject by the subject’s name in the General Indices. Hardy Decl. ¶¶ 24, 26. Using plaintiffs full name (Jesse Manuel Skinner) and variants thereof, as well as his date and place of birth and Social Security number as search terms, id. ¶ 31, a CRS search for records maintained by FBIHQ in response to FOI-PA Nos. 1086283-000 and 1086209-000 yielded no main files responsive to the request. Id. ¶¶ 31-32. A CRS search of JNFO records using the same search terms “located a potentially responsive cross-reference in file number 245F-JN-25002.” Id. ¶ 33. At that time, “[d]ue to the lack of identifying information on the document, the FBI was unable to determine if this document was in fact responsive to plaintiffs request.” Id. The FBI conducted another CRS search of FBIHQ and JNFO records using the same search terms and a review of file number 245F-JN-25002, and then was able to determine that the file in fact was responsive to plaintiffs request. Id. ¶ 34. Its ELSUR search yielded no responsive records. Id. ¶ 35. 3. DEA The DEA interprets plaintiffs request “broadly ... as a request for any and all criminal investigative information about himself,” and deemed its Investigative Reporting and Filing System (“IFRS”), which contains all criminal investigative files compiled by the DEA, the place were responsive records likely would be found. Myrick Decl. ¶ 25. In order to retrieve information from IFRS, one uses the Narcotics and Dangerous Drugs Information System (“NADDIS”), an index which “points to investigative files and particular Reports of Information (“ROIs”) or other documents ... containing] information regarding a particular individual or subject of an investigation.” Id. ¶ 26. “Individuals are indexed and identified in NADDIS by their name, Social Security Number, and/or date of birth.” Id. DEA staff conducted a NADDIS query using plaintiffs name, Social Security number, and date of birth as search terms, and six criminal investigative" }, { "docid": "8869554", "title": "", "text": "not proper.” Truitt v. Dep’t of State, 897 F.2d at 542; see also Valencia-Lucena v. United States Coast Guard, 180 F.3d at 326. DEA staff “broadly construed” plaintiffs FOIA requests as seeking “any and all investigative information that referenced or related to him,” Seidel Decl. ¶ 12, and determined that records of this nature were “reasonably likely to be found in investigative files contained in the DEA Investigative Reporting and Filing System (IFRS)[.]” Id. ¶ 13. The DEA IFRS “contains all administrative, general, and investigative files compiled by DEA for law enforcement purposes.” Seidel Decl. ¶ 13. “The DEA Narcotics and Dangerous Drugs Information System (NADDIS) is the index to and the practical means by which DEA retrieves investigative reports and information from IFRS.” Id. ¶14. NADDIS “points to investigative files and particular DEA Reports of Investigation (ROI), DEA Form-6 or other documents” which con tain information regarding a particular subject of investigation. Id. An individual is “indexed and identified in NADDIS by [his] name, Social Security Number, and/or date of birth.” Id. Using the information plaintiff provided with his request, including his Social Security number and the date and place of birth, DEA staff conducted NADDIS queries in February 2008 and January 2009. Each search produced the same result: one subject, RAUL SANCHEZ ZAVALA, who was arrested in Spokane, Washington on April 28, 2005, for delivery of methamphetamine. Id. ¶ 15. This individual was indexed in NADDIS under number 6082390, and was associated with investigative file number RH-04-0039. Id. The DEA Resident Office in Spokane, Washington maintained investigative file number RH-04-0039. Seidel Decl. ¶ 16. Its staff “conducted searches for responsive records from file number RH-04-0039” and compared the documents contained therein to documents contained in the EOUSA referral. Id. Where necessary, CCA staff “coordinated with the U.S. Attorney’s Office, Eastern District of Washington, to release documents directly to plaintiff in this action in lieu of returning select documents back to EOUSA for reply to plaintiff.” Id. The DEA identified 285 pages of responsive material, representing the results of both the DEA’s searches and the EOUSA’s referral. Seidel Decl." }, { "docid": "20505745", "title": "", "text": "classification of the violator(s), the types and amount of suspected drugs involved, the priority of the investigation and suspected location and scope of criminal activity.” Id. ¶ 78. “NADDIS numbers are multi-digit numbers assigned to drug violators and suspected drug violators known to DEA and entities that are of investigative interest.” Id. ¶ 79. Each NADDIS number is unique to a particular violator. Id. If the DEA were to release G-DEP codes, the declarant states, “[s]us-pects could decode ... information” to “identify priority given to narcotic investigations, types of criminal activities involved, and violator ratings,” and thus “change their pattern of drug trafficking in an effort to ... avoid detection and apprehension.” Id. ¶ 80. Disclosure of NAD-DIS numbers and informant identifier codes, which “are unique and personal to the individual to whom the number applies, ... could allow violators to avoid apprehension ] and could place law enforcement personnel in danger, since the details of many aspects of a DEA investigation would be disclosed.” Id. ¶ 81. Disclosure of “details of DEA investigations” would make violators “aware of how to respond in different situations where detection and/or apprehension are eminent [sic].” Id. The Court concludes that this type of information properly is withheld under FOIA Exemption 7(E). See Adionser v. Dep’t of Justice, No. 10-27, 33 F.Supp.3d 23, 25-26, 2014 WL 1284804, at *1 (D.D.C.2014) (withholding G-DEP codes under FOIA Exemption 7(E)); Miller v. U.S. Dep’t of Justice, 872 F.Supp.2d 12, 28-29 (D.D.C.2012) (withholding NADDIS numbers and TECS numbers under FOIA Exemption 7(E)). The DEA also withholds under Exemption 7(E) “internal DEA and other agency telephone numbers.” Myriek Decl. ¶ 74. These telephone numbers are assigned to DEA employees, and their release to the public “could enable violators to identify law enforcement personnel, disrupt official DEA business, subject DEA employees to harassing phone calls and cause interference with the DEA internal communications network.” Id. This too, is information properly withheld under FOIA Exemption 7(E). See Light v. Dep’t of Justice, 968 F.Supp.2d 11, 29 (D.D.C.2013) (withholding “internal nonpublic telephone numbers and web site addresses used frequently by [FBI] personnel" }, { "docid": "21838266", "title": "", "text": "internal system of identifying information and individuals, under Exemption 2. Def.’s Reply, Declaration of Leila I. Wassom (“Wassom Decl.”) ¶33. A G-DEP code is assigned when the agency opens a case file and it is used to “indicate the classification of the violator, the types and amount of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 33(a). NADDIS numbers are “multi-digit numbers assigned to drug violators and suspected drug violators known to the DEA.” Id. ¶ 33(b). The numbers are unique to the violators to whom they are assigned. Id. If a NAD-DIS number were disclosed, a requester would have “a means of finding out not only drug violator information about the subject but also personal information about [the violator], relatives and any third parties identifiable with the violator.” Id. Release of G-DEP codes could help suspects decode information to identify priority given to narcotic investigations, types of criminal activities, and violator ratings. Id. ¶ 34. With this information, suspects could change their behavior so as to avoid detection and otherwise thwart the DEA’s investigative and law enforcement efforts. Id. G-DEP codes and NADDIS numbers fall within Exemption 2 and routinely are withheld. See Barbosa v. Dep’t of Justice, No. 06-0867, 2007 WL 1201604, at *3 (D.D.C. Apr.23, 2007) (concluding that DEA properly withheld violator identifiers consisting of G-DEP codes, NADDIS numbers, and confidential informant numbers which are part of the agency’s internal system of identifying information and individuals); Wilson v. Drug Enforcement Admin., 414 F.Supp.2d 5, 12-13 (D.D.C.2006) (concluding that G-DEP codes and NADDIS numbers properly are withheld as “high 2” exempt information, and that NADDIS numbers, insofar as they are part of the DEA’s internal system of identifying information in which there is no public interest, properly are withheld as “low 2” exempt information). Therefore, DEA’s decision to withhold G-DEP codes and NADDIS numbers under Exemption 2 is proper. e. Army The Army withholds “internal secure telephone numbers and message addresses” under Exemption 2. Ellis Decl. ¶ 16. These numbers and addresses are used by personnel assigned" }, { "docid": "5194696", "title": "", "text": "25. “All criminal investigative records maintained by DEA about any individual that is of investigative interest are reasonably likely to be found in the DEA Investigative Reporting and Filing System (IRFS),” id. ¶ 26, and no other, id. ¶ 27. IRFS “contains all administrative, general and investigative files compiled by DEA for law enforcement, purposes.” Id. ¶ 28. The Narcotics and Dangerous Drugs Information System (“NADDIS”) is the index by which information is retrieved from IRFS. Id. “NADDIS lists the investigative file number(s) and particular DEA Report of Investigation (ROI), DEA Form-6, or other documents by date, that contain information regarding a particular individual.” Id. ¶ 29. An individual is indexed in NAD-DIS by his name, Social Security number, and date of birth. Id. Using plaintiffs name, Social Security number and date of birth as search terms, DEA' staff conducted a NADDIS query which yielded “two ... criminal investigative case file numbers, DEA Investigative Case File No[s]. GN-06-0019 and GN-86Z002.” Id. ¶ 30. Retrieved from these files were 31 pages of records, id. ¶ 31, were the following: a DEA Defendant Disposition Report, a DEA Personal History Report, Reports of Investigations, an FBI fingerprint card, and a photograph, id. ¶ 43. Because plaintiff “was charged with violating federal controlled substance laws” and because “[a] DEA task force investigated, arrested, and assisted in the federal prosecution,” plaintiff dismisses as “not believable” the DEA’s claim that only 31 pages of records were located. Pl.’s Opp’n at 12. “There must be more records than 31 pages related to Higgins’ DEA investigation,” plaintiff surmises, and deems the dearth of records a sign that the agency’s search was inadequate. Id. The level of plaintiffs satisfaction with the results of the search is not dispositive. “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg, 705 F.2d at 1351 (citing Perry, 684 F.2d at 128). Plaintiffs mere “speculation as to the existence of additional records ... does not render the search[ ] inadequate.” Concepcion v. Fed." } ]

[ { "docid": "23024850", "title": "", "text": "with certain exceptions not pertinent here, for any person to refuse to sell or otherwise make unavailable a dwelling to any person because of race. Section 3604(a) of 42 U.S.C. provides in pertinent part as follows: [I]t shall be unlawful— (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin. (Emphasis added.) Section 3602(b) defines “dwelling” to include “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families,” and clearly applies to cooperative apartment buildings such as that involved in the present action. Section 3612 gives a private right of action to a person who claims to have been denied housing on a basis prohibited by § 3604. ^ The threshold question in an action to enforce § 3604 is what the plaintiff must show in order to make out a prima facie case. The courts that have dealt with this question have concluded that in order to prove a prima facie case of race discrimination plaintiffs needed to show only that the action complained of had a racially discriminatory effect; they were not required to show that the defendants acted with racially discriminatory motivation. E. g., Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1287-90 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978) (hereinafter “Village of Arlington Heights II”); Resident Advisory Board v. Rizzo, 564 F.2d 126, 146-48 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1976); United States v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th Cir. 1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); United States v. Youritan Construction Co., 370 F.Supp. 643, 648 (N.D.Cal.1973), aff’d in part, 509 F.2d 623" } ]

[ { "docid": "17661777", "title": "", "text": "Cir.1982) (in challenge to adults-only rental policy of apartments in Los Angeles, court focused on percentage of Blacks, Hispanics, Whites, and female-head-of-the-households with children in Los Angeles); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 149 (3rd Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978) (court focused on racial discrimination in Philadelphia and in the PHA system). In the Title VII context, we have held that a defendant’s justification for the challenged action should not be considered in assessing the establishment of a prima facie case. See Kenworthy v. Conoco, Inc., 979 F.2d 1462 (10th Cir.1992); MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1119-21 (10th Cir.1991). For purposes of this opinion, we shall assume, just as the ALJ did, that a Title VIII plaintiff may establish a prima facie case of discriminatory impact by proof of national statistics relative to U.S. households as presented here. Thus, a Title VIII prima facie case, once established, as here, could alone suffice to prove a Title VIII violation unless the defendants justify the discriminatory effect which has resulted from their challenged actions. Rizzo, 564 F.2d at 146 (unrebutted proof of discriminatory effect alone may justify a federal equitable response). V. The Merits The record reveals that Mountain Side presented evidence relative to legitimate, non-pretextual reasons for its occupancy limitations: (1) sewer systems limitations, and (2) concern over the quality of park life. In Metropolitan Housing Development Corp. v. Arlington Heights, 558 F.2d 1283, 1290 (7th Cir.1977), cert. denied. 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978), the court set forth four critical factors to be evaluated in determining under what circumstances conduct which produces discriminatory impact but which was taken without discriminatory intent is violative of § 3604(a): (1) how strong is the plaintiffs showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standards of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide" }, { "docid": "11417515", "title": "", "text": "and need not show that the decision complained of was made with discriminatory intent”); Huntington at 934 ( \"[t]he Act's stated purpose to end discrimination requires a discriminatory effect standard”); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1287-90 (7th Cir.1977) (holding that Fair Housing Act claim could be established by proof of discriminatory effect, without proof of discriminatory intent); United States v. City of Blackjack, 508 F.2d 1179, 1184-85 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975) (\"[t]he burden of proof in Title VIII cases is governed by the concept of the ‘prima facie case.’ ... To establish a prima facie case of racial discrimination, the plaintiff need prove no more than that the conduct of the defendant actually or predictably results in racial discrimination; in other words, that it has a discriminatory effect.”); Resident Advisory Board v. Rizzo, 564 F.2d 126, 146-48 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978) (“[w]e conclude that, in Title VIII cases, by analogy to Title VII cases, unrebutted proof of discriminatory effect alone may justify a federal equitable response”). . The Second Circuit’s disparate impact test is based on both the Seventh Circuit’s four-part test in Arlington Heights II and the Third Circuit's test in Rizzo. See Huntington at 935-36. . The Town's Housing Assistance Plan (HAP) was adopted by the Town Board and filed with the U.S. Department of Housing and Urban Development (HUD) as part of the Town’s application for federal community development funds. . A planned development application differs from a typical request for a zoning variance in that the ultimate density, type, and location of particular uses in the planned development are the result of compromises reached between the developer and the town. The application submitted by Northrup and Mayhew was for the Mayhew Ranch Planned Development. . Def.’s Ex. 190 — Cash's February 4, 1991 letter. . 42 U.S.C. § 1437f. Landlords who participate in the Section 8 program receive only a portion of the rent from the tenants — e.g.," }, { "docid": "22290461", "title": "", "text": "words that it has a discriminatory effect.” United States v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975). The plaintiff need not show that the decision complained of was made with discriminatory intent. United States v. Yonkers Board of Education, 837 F.2d 1181, 1217 (2d Cir.1987); Robinson, 610 F.2d at 1036-38; Resident Advisory Board v. Rizzo, 564 F.2d 126, 146-48 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir.1976); Black Jack, 508 F.2d at 1184-85. Refusal to require intent in disparate impact cases is entirely consistent with our prior decisions. See Starrett City, 840 F.2d at 1100; Yonkers, 837 F.2d at 1217; Robinson, 610 F.2d at 1036-38. In determining whether discriminatory effect is sufficient, we look to congressional purpose, as gleaned from the legislative history of Title VIII, related Title VII jurisprudence, and practical concerns. Although none of these considerations is alone determinative, taken together they strongly suggest that discriminatory impact alone violates Title VIII. The Act’s stated purpose to end discrimination requires a discriminatory effect standard; an intent requirement would strip the statute of all impact on de facto segregation. Comment, Justifying a Discriminatory Effect Under the Fair Housing Act: A Search for the Proper Standard, 27 UCLA L.Rev. 398, 406 (1979) (hereafter UCLA Comment). Congress appears not to have resolved this precise question. Nonetheless, the legislative history provides some indication that an intent standard was not contemplated. The Rizzo court attached significance to the Senate’s rejection of an amendment that would have required “proof of discriminatory intent to succeed in establishing a Title VIII claim.” Rizzo, 564 F.2d at 147. The amendment, however, was far less sweeping than Rizzo suggests because it applied only to a single-family owner-occupied house. UCLA Comment, 27 UCLA L.Rev. at 406-7 n. 45. Nevertheless, its rejection does underscore congressional willingness to broaden Title VIII to encompass segregation resulting from the application of facially neutral rules, even in the absence of discriminatory intent. More" }, { "docid": "19861539", "title": "", "text": "low and moderate income housing shall first be completed and made available to persons to be displaced by Authority action, which new construction shall precede any other displacement activity in the Project Area, or that other decent, safe and sanitary housing within the Project boundaries be made available with the minimum of hardship and with adequate provision for assistance in effecting such relocation. It appears that only the local defendants’ liability could be affected by this ordinance. In addition, if the case went to trial, there would be an issue as to whether a private right of action can be implied under the Ordinance. If it can and plaintiffs can prove that defendants failed to meet the Ordinance’s requirements, then the broad relief that plaintiffs seek perhaps would be proper to remedy the breach of the Ordinance. Nevertheless, the issues are not determined, and plaintiffs risk achieving success if they go to trial. Plaintiffs’ remaining claims are brought under the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and the Fifth and Fourteenth Amendments. Defendants’ are alleged to have engaged in racial discrimination and plaintiffs seek equitable relief for the violation of their civil rights. Of all the civil rights claims alleged, the Fair Housing Act one is the easiest to prove, for plaintiffs need not show under that Act that defendants’ discriminatory acts were done intentionally. Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert. denied 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978). To establish the Fifth and Fourteenth Amendment claims, plaintiffs would be required to prove purposeful discrimination. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). And as to plaintiffs’ Title VI claims, it is not clear, after the recent decision in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), whether plaintiffs must prove intentional discrimination to succeed." }, { "docid": "14757037", "title": "", "text": "with other battered women through which they could get sustenance from each other and counseling for all. The right to association, as enunciated in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), does not reach as far as plaintiffs suggest. The Court in Roberts referred to two distinct prongs of the freedom of association right. One prong encompasses the right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion. See, e.g., Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). That is not implicated here. The other prong recognizes choices by the individual “to enter into and maintain certain intimate human relationships.” Roberts, 468 U.S. at 617, 104 S.Ct. at 3249. The zoning occupancy limitation challenged here does nothing to prevent plaintiffs from associating with each other, and with others similarly situated. It merely provides that for zoning purposes, a reasonable occupancy limit must be observed. Nothing in Roberts suggests that the Court’s prior opinion in Belle Terre, which explicitly rejected a right of association claim in a zoning context, see 416 U.S. at 7, 94 S.Ct. at 1540, is no longer governing authority. We must, therefore, reject plaintiffs’ freedom of association claim. C. The Fair Housing Act Claim We turn to plaintiffs’ final contention that the Butler Zoning ordinance is invalid, this time because it violates the Fair Housing Act (Title VIII), 42 U.S.C. §§ 3601-3631 (1982), which prohibits certain specified discrimination in housing. To make out a 'prima facie case under Title VIII, a plaintiff can show either discriminatory treatment, see Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir.1979), or discriminatory effect alone, without proof of discriminatory intent, see Resident Advisory Board v. Rizzo, 564 F.2d 126, 148 (3rd Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978). In this case, plaintiffs allege that the zoning ordinance" }, { "docid": "18816107", "title": "", "text": "housing, including both governmentally and privately operated units, as to both the actual sale or rental and all terms and conditions; Section 3604 is among those sections of Title VIII that are enforceable by private parties. See 42 U.S.C. § 3612; Residents Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978). In fact, in Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 93 S.Ct. 364, 366, 34 L.Ed.2d 415 (1972), the United States Supreme Court noted that “complaints by private persons are the primary method of obtaining compliance with [Title VIII].” Plaintiffs contend that the Housing Authority’s use of an applicant’s race as a criterion for tenant selection and assignment and the Housing Authority’s use of a maximum quota on the percentage of black families permitted to reside in the Housing Authority’s housing projects violates two provisions of the Fair Housing Act: section 3604(a) and section 3604(b). Those two provisions make it unlawful (a) To ... make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin. (b) To discriminate against any person in the terms, conditions, or privileges of ... rental of a dwelling ... because of race, color, religion, sex, or national origin. To withstand plaintiffs’ Title VIII attack, the Housing Authority relies on a different provision of the Fair Housing Act, which provides that “[t]he Secretary of Housing and Urban Development shall .. . administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter.” 42 U.S.C. § 3608(d). The Housing Authority argues that pursuant to section 3608(d) it has an obligation to act affirmatively to promote integration in its projects, and that the action it has undertaken is necessary to comply with that obligation. The defendant relies on Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir.1973), discussed above, as support for its interpretation of the dictates of Title VIII. The language used by Congress in the various provisions upon which" }, { "docid": "17790460", "title": "", "text": ". Pub.L. No. 90-284, tit. VIII, §§ 801 et seq., 82 Stat. 81 (1968), 42 U.S.C. §§ 3601 et seq. (1976), hereinafter cited as codified. . 42 U.S.C. § 3604(a)-(b) (1976). . Since December 31, 1968, § 3604’s prohibitions against discrimination in rentals have applied to all dwellings not exempted. Id. § 3603(a)(2). Crestwood Apartments falls within the statutory definition of “dwelling,” id. § 3602(b), but outside the exemptions, see id. §§ 3603(b), 3607. . See Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 349-350 (7th Cir. 1971) (defendant violated Act by refusing to rent apartment to plaintiff because of her race); Bishop v. Pecsok, 431 F.Supp. 34, 37-38 (N.D.Ohio 1976) (defendant violated Act by “rejecting the plaintiffs’ application on the basis of race”). . It is not necessary to consider whether a demonstration of discriminatory effect, unaccompanied by a showing of discriminatory intent, might in some circumstances establish a violation of the Fair Housing Act. See, however, Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 140-150 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1976); United States v. City of Black Jack, 508 F.2d 1179, 1184-1185 (8th Cir. 1974), cert, denied, 422 U.S. 1024, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); Kennedy Park Homes Ass’n, Inc. v. City of Lackawanna, 436 F.2d 108, 114 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971); Nevett v. Sides, 571 F.2d 209, 237-238 n.8 (5th Cir. 1978) (concurring opinion); cf. United States v. City of Milwaukee, 441 F.Supp. 1377, 1380-1382 (E.D.Wis.1977). . “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). The Advisory Committee’s Note to Rule 404(b) explains that it deals with a specialized but important application of the general" }, { "docid": "14273253", "title": "", "text": "discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of— (A) that buyer or renter, (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that buyer or renter. The Act specifically defines discrimination to include “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). 3. Section 3617 makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 803, 804, 805, or 806 of this title. 4. These provisions prohibit discriminatory housing practices by municipal governments as well as private parties. Oxford House-Evergreen v. City of Plainfield, 769 F.Supp. 1329 (D.N.J.1991) (challenging city’s efforts to prevent operation of local Oxford House in area zoned for single family residences) (OH-Evergreen). See also Resident Advisory Board v. Rizzo, 564 F.2d 126 (3rd Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Smith v. Town of Clarkton, 682 F.2d 1055, 1068 (4th Cir.1982); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978) (Arlington Heights II); United States v. Yonkers Board of Education, 624 F.Supp. 1276 (S.D.N.Y.1985), aff'd, 837 F.2d 1181 (2nd Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988); United States v. City of Birmingham, 538 F.Supp. 819 (E.D.Mich.1982), aff'd and modified as to relief, 727 F.2d 560 (6th Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). 5. At the outset, we want to make clear that we think the issue of whether" }, { "docid": "18350539", "title": "", "text": "of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin. 42 U.S.C. § 3604(a). Section 3617 provides, as follows: It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exer cise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title. This section may be enforced by appropriate civil action. 42 U.S.C. § 3617. As discussed supra, where a housing supplier plaintiff in an exclusionary zoning case proves a violation of § 3604(a) he also proves a violation of § 3617. There are situations where a § 3617 violation may occur without a violation of § 3604(a), but the allegations herein do not give rise to such a situation. See R. Schwemm, Housing Discrimination Law at 199 (1983). Accordingly, this Court will not separately analyze plaintiffs’ § 3617 claim because the § 3604(a) analysis applies equally to said claim. Congress’ purpose in enacting the Fair Housing Act was “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601. There are two (2) ways to prove a violation of § 3604(a). The first is by proving discriminatory intent. As discussed supra, under the analysis of plaintiffs’ equal protection claim, plaintiffs did not establish that defendant acted with discriminatory intent. Thus, this Court need only consider the second method of establishing a prima facie violation of the Fair Housing Act: proof of discriminatory impact. See Betsey v. Turtle Creek Associates, 736 F.2d 983 at 986 (4th Cir.1984); Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir.1982); Halet v. Wend Investment Co., 672 F.2d 1305, 1311 (9th Cir.1982); Resident Advisory Board v. Rizzo, 564 F.2d 126, 147-49 (3d Cir.1977) cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55" }, { "docid": "14757039", "title": "", "text": "has a discriminatory effect on protected groups. At the time the district court ruled, the relevant provision of Title VIII prohibited “mak[ing] unavailable ... a dwelling to any person because of ... sex,” 42 U.S.C. § 3604(a) (1982), and the district court limited its discussion to gender discrimination. The court held that plaintiffs had not demonstrated a violation of the Act because the ordinance is facially neutral and applies to all transitional dwellings, regardless of whether their intended occupants are male or female. The court also held that plaintiffs had not proven their disparate impact claim, because they failed to show that its application has fallen more harshly on women than on men. We agree that the fact that the ordinance will have an impact on group homes established for abused women does not alone establish discriminatory effect, because the resident limitation would have a comparable effect on males if the transitional dwelling was established for a different group, such as, for example, recovering male alcoholics. On the basis of the record established, we cannot conclude that the district court erred in rejecting the Title VIII challenge made on the basis of sex discrimination. The 1988 amendments to Title VIII added a provision making Title VIII applicable to “familial status” as well as race, color, religion, sex or national origin. 42 U.S. C.A. § 3604(a) (West.Supp.1989). Familial status is defined under the Act to include “one or more individuals (who have not attained the age of 18 years) being domiciled with — (1) a parent or another person having legal custody of such individual or individuals_” 42 U.S.C.A. § 3602(k) (West.Supp.1989). Although this amendment was not in force at the time the district court ruled, “a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Plaintiffs argue that the across-the-board restriction on the number of residents who" }, { "docid": "19725094", "title": "", "text": "“special requirements through ... conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.” House Report at 24. A plaintiff makes out a prima facie case under Title VIII, as amended by the FHAA, by showing either: (1) intentional disparate treatment of the handicapped with regard to housing; or (2) disparate impact alone, without proof of discriminatory intent. Doe v. City of Butler, 892 F.2d 315, 323 (3d Cir.1989). A case of disparate treatment may be established against a public entity by demonstrating that a given legislative provision discriminates against the handicapped on its face, i.e. applies different rules to the disabled than are applied to others. Larkin v. State of Mich. Dept. of Social Services, 89 F.3d 285, 289 (6th Cir.1996); see also Association for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth, 876 F.Supp. 614 (D.N.J.1994) (“Elizabeth”) at 620. A plaintiff in this instance need not prove malee or prejudice on the part of the drafters of the statute or ordinance, because the proper focus is on the exploit terms of the legislation. Federal courts have extended to Title VIII the Supreme Court’s instruction in the Title VII employment context that “the absence of a malevolent motive does not convert a facialy discriminatory polcy into a neutral polcy with a discriminatory effect.” E.g., Larkin at 290; Elizabeth at 620. If a Title VIII plaintiff establshes that a statute or ordinance is facialy discriminatory, the burden shifts to the governmental defendant to justify the disparate treatment. Elizabeth at 620 (citing, e.g., Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 149 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 1458, 55 L.Ed.2d 499 (1978)). In this Circuit, a district court is accorded discretion in determining whether the defendant has met its burden, but is to be guided by the folowing rough criteria: [A] justification must serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and the defendant must show that no alternative course" }, { "docid": "12384061", "title": "", "text": "if Plaintiffs further demonstrate that Defendants, regardless of their intent, failed to fulfill such obligations within the Open Period. In essence, Plaintiffs could prevail if they prove that Defendants failed to treat the victims of past racial discrimination as required. C. Statutory and Regulatory Claims 1.The Fair Housing Act (“FHA”) (Title VIII) Title VIII prohibits public and private actors from engaging in a number of discriminatory practices and requires the statute be administered so as to fulfill its articulated goals. In general, to establish Title VIII liability, a plaintiff may show that such practices have caused her harm by affecting a discriminatory or segregato-ry impact upon her. Unlike the U.S. Constitution, Title VIII imposes liability on a government defendant even though a plaintiff may fail to prove that the defendant acted with discriminatory intent. However, a defendant may avoid statutory liability by demonstrating that its conduct served a public interest. unattainable by alternate means. a. Alleged Fair Housing Act Violations Plaintiffs must make a threshold showing that Defendants, during the Open Period, engaged in some type of practice proscribed by Title VIII. Plaintiffs have alleged three types of such practices: 1. The denial of housing; 2. Discrimination in housing conditions and services; and 3. The failure to promote fair housing. These allegations are discussed in turn. (1). “Denial” of Housing (§ 3601(a)) Section 3604(a) of the FHA provides that it shall be unlawful “[t]o refuse to sell or rent... or otherwise make unavailable or deny ... a dwelling to any person because of race ...” (emphasis added). At least with respect to government defendants, the case law indicates that there can be a constructive illegal “denial” of housing — i.e., a government entity may violate § 3604(a) by denying a plaintiff a housing opportunity (as opposed to an actual brick-and-mortar dwelling). See e.g., Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065-66 (4th Cir.1982) (a town’s withdrawal from a multi-municipality housing authority may ground § 3604(a) liability); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 131 (3d Cir.1977) (illegal denial of housing may result from “inchoate” state action —" }, { "docid": "18816106", "title": "", "text": "the constitutionally onerous racial quota contained in their tenant selection and assignment plan, and that that plan is precisely tailored toward achieving their integration objective, we find that the plan violates plaintiffs’ rights under the equal protection clause of the fourteenth amendment. 2. Title VIII The Fair Housing Act, 42 U.S.C. §§ 3601-3631 (1976 & Supp. IV 1980), was enacted as Title VIII of the Civil Rights Act of 1968. Section 3601 of that Act provides that “[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” Because we have concluded in section one that the defendants’ tenant selection and assignment plan violates the equal protection clause of the fourteenth amendment,” a fortiori, we find that that plan violates Title VIII of the Civil Rights Act of 1968. In this section, however, we will consider plaintiffs’ Title VIII claims as an alternative and independent basis for relief. The operative section of Title VIII, 42 U.S.C. § 3604, bars discrimination in the sale or rental of housing, including both governmentally and privately operated units, as to both the actual sale or rental and all terms and conditions; Section 3604 is among those sections of Title VIII that are enforceable by private parties. See 42 U.S.C. § 3612; Residents Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978). In fact, in Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 93 S.Ct. 364, 366, 34 L.Ed.2d 415 (1972), the United States Supreme Court noted that “complaints by private persons are the primary method of obtaining compliance with [Title VIII].” Plaintiffs contend that the Housing Authority’s use of an applicant’s race as a criterion for tenant selection and assignment and the Housing Authority’s use of a maximum quota on the percentage of black families permitted to reside in the Housing Authority’s housing projects violates two provisions of the Fair Housing Act: section 3604(a) and section 3604(b). Those two provisions make it unlawful (a) To ... make unavailable or deny, a" }, { "docid": "11303924", "title": "", "text": "NAACP v. Town of Huntington, 844 F.2d 926, 933 (2d Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988). If Plaintiffs were able to make out such a prima facie case under the FHAA, then Plaintiff would prevail unless Defendant could prove that “its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve the interest with less discriminatory effect.” Id. at 936 (citing Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148-49 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978)). However, as demonstrated above, Plaintiffs have failed to set forth evidence of discriminatory intent sufficient to withstand Defendant’s motion for summary judgment. Cf. City of Birmingham, 727 F.2d at 565 (adopting the Arlington Heights standards in Fan-Housing cases). Similarly, for the reasons set forth in this Court’s analysis of the first Arlington Heights factor, Plaintiffs have also failed to set forth evidence of discriminatory impact or effect sufficient to withstand Defendant’s motion. Plaintiffs argue, however, that Defendant has discriminated by not making reasonable accommodations for Plaintiffs. The Court recognizes that with regard to- a person with a handicap the FHAA defines “discrimination” as including the “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). However, the Court finds that Defendant has made reasonable accommodations and Plaintiffs have set forth no evidence to the contrary. It is disingenuous for Plaintiffs to argue that Defendant’s making of “reasonable accommodations” requires that Defendant grant Plaintiffs application for the special use permit. Such an interpretation would give handicapped persons carte blanche to determine where and how they would live regardless of zoning ordinances to the contrary. Certainly, this is not what Congress intended when it defined “discrimination” to include not making “reasonable accommodations.” Cities retain the power to enforce zoning ordinances which are not “unduly burdensome” to handicapped persons. See Marbrunak, Inc. v. City of Stow, 974 F.2d 43, 46-47" }, { "docid": "1773385", "title": "", "text": "claim that the County violated Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3619 (1978) (the Fair Housing Act), which forbids discrimination in making available or providing services related to housing. The Fair Housing Act states in part that: it shall be unlawful— (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin. (b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin. 42 U.S.C. § 3604(a) & (b) (1974). Congress’s purpose in enacting the Act was “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601 (1968). Courts thus have applied the Act broadly within its terms. See, e.g., Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978) (Arlington Heights II). In Arlington Heights II, for example, this court determined that under certain circumstances a violation of Section 3604(a) can be established by a showing of the discriminatory effects of particular practices without a showing of discriminatory intent. The court noted, however, that not every action which produces discriminatory effects is necessarily illegal. 558 F.2d at 1290 (citing Brest, The Supreme Court, 1975 Term — Forward: In Defense of the Antidiscrimination Principle, 90 Harv.L.Rev. 1, 28-29 (1976)). The issue in this case is whether the alleged County practices, assuming they occurred, violated the Fair Housing Act by “otherwise mak[ing] unavailable or denypng]” a dwelling to any person because of race or of discriminating “in the provision of services or facilities” in connection with the sale or rental of a dwelling. The" }, { "docid": "14757038", "title": "", "text": "situated. It merely provides that for zoning purposes, a reasonable occupancy limit must be observed. Nothing in Roberts suggests that the Court’s prior opinion in Belle Terre, which explicitly rejected a right of association claim in a zoning context, see 416 U.S. at 7, 94 S.Ct. at 1540, is no longer governing authority. We must, therefore, reject plaintiffs’ freedom of association claim. C. The Fair Housing Act Claim We turn to plaintiffs’ final contention that the Butler Zoning ordinance is invalid, this time because it violates the Fair Housing Act (Title VIII), 42 U.S.C. §§ 3601-3631 (1982), which prohibits certain specified discrimination in housing. To make out a 'prima facie case under Title VIII, a plaintiff can show either discriminatory treatment, see Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir.1979), or discriminatory effect alone, without proof of discriminatory intent, see Resident Advisory Board v. Rizzo, 564 F.2d 126, 148 (3rd Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978). In this case, plaintiffs allege that the zoning ordinance has a discriminatory effect on protected groups. At the time the district court ruled, the relevant provision of Title VIII prohibited “mak[ing] unavailable ... a dwelling to any person because of ... sex,” 42 U.S.C. § 3604(a) (1982), and the district court limited its discussion to gender discrimination. The court held that plaintiffs had not demonstrated a violation of the Act because the ordinance is facially neutral and applies to all transitional dwellings, regardless of whether their intended occupants are male or female. The court also held that plaintiffs had not proven their disparate impact claim, because they failed to show that its application has fallen more harshly on women than on men. We agree that the fact that the ordinance will have an impact on group homes established for abused women does not alone establish discriminatory effect, because the resident limitation would have a comparable effect on males if the transitional dwelling was established for a different group, such as, for example, recovering male alcoholics. On the basis of the record established, we cannot" }, { "docid": "8724268", "title": "", "text": "a different manner than others. See Potomac Group Home, 823 F.Supp. at 1295 (“To prove discriminatory intent, a plaintiff need only show that the handicap of the potential residents [of a group home] ... was in some part the basis for the policy being challenged.”) (quotation omitted); Horizon House Dev. Servs., Inc. v. Township of Upper Southampton, 804 F.Supp. 683, 694, 696 (W.D.Pa.1992), aff'd, 995 F.2d 217 (1993); Stewart B. McKinney Found., Inc. v. Town Plan and Zoning Comm’n of Fairfield, 790 F.Supp. 1197, 1211 (D.Conn.1992). Thus, a plaintiff makes out a prima facie case of intentional discrimination under the FHAA merely by showing that a protected group has been subjected to explicitly differential— i.e. discriminatory — treatment. In applying a discriminatory intent analysis to this case, we do not imply that FHAA claims cannot also be based on the discriminatory effect of a facially neutral policy. It is widely accepted that an FHAA violation can be demonstrated by either disparate treatment or disparate impact. See, e.g., Doe v. City of Butler, Pa., 892 F.2d 315, 323 (3d Cir.1989); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934-35 (2d Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988) (per curiam); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146-47 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); United States v. City of Black Jack, Mo., 508 F.2d 1179, 1184-85 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975). We also do not suggest that the differential treatment in this case has not caused a “disparate impact” on the handicapped in an everyday sense — as probably all intentional discriminatory treatment does. However, the legal framework for discriminatory effects, or disparate impact, claims remains inappropriate for this case. “A disparate impact analysis examines a facially-neutral policy or practice, such as a hiring test or zoning law, for its" }, { "docid": "18350540", "title": "", "text": "See R. Schwemm, Housing Discrimination Law at 199 (1983). Accordingly, this Court will not separately analyze plaintiffs’ § 3617 claim because the § 3604(a) analysis applies equally to said claim. Congress’ purpose in enacting the Fair Housing Act was “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601. There are two (2) ways to prove a violation of § 3604(a). The first is by proving discriminatory intent. As discussed supra, under the analysis of plaintiffs’ equal protection claim, plaintiffs did not establish that defendant acted with discriminatory intent. Thus, this Court need only consider the second method of establishing a prima facie violation of the Fair Housing Act: proof of discriminatory impact. See Betsey v. Turtle Creek Associates, 736 F.2d 983 at 986 (4th Cir.1984); Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir.1982); Halet v. Wend Investment Co., 672 F.2d 1305, 1311 (9th Cir.1982); Resident Advisory Board v. Rizzo, 564 F.2d 126, 147-49 (3d Cir.1977) cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290-91 (7th Cir. 1977) cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); United States v. City of Black Jack, Missouri, 508 F.2d 1179, 1186 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); Atkins v. Robinson, 545 F.Supp. 852, 866 (E.D.Va.1982); United States v. City of Parma, Ohio, 494 F.Supp. 1049, 1054-55 (N.D.Ohio 1980), affd. in part and rev’d in part, 661 F.2d 562 (6th Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982). See generally, R. Schemm, Housing Discrimination Law at 126-27, 139-43 (1983). A violation of the Fair Housing Act can be made out by proof of discriminatory effect alone, because the purpose of the Act is to promote integrated housing rather than simply outlaw invidious discrimination. See R. Schwemm, Housing Discrimination Law at 42-43, 127 (1983). For this reason, there are two types of discriminatory effects which can establish a prima facie case under" }, { "docid": "5018799", "title": "", "text": "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such [handicapped individuals] equal opportunity to use and enjoy a dwelling....” 42 U.S.C. § 3604(f)(3)(B). Plaintiffs argue that the “reasonable accommodation” obligation applies to R-l zoning regulation on which the Town bases its denial of Easter Seals’ requested construction permit. Plaintiffs contend that although the prospective residents are not related to each other, they will use the premises in much the same way as would a traditional family, and thus, minimal “accommodation” is required. As plaintiffs point out, the proposed community residence deserves an R-2 classification, not the 1-1 classification determined by defendant Scala. Courts have broadly interpreted the Act’s clear prohibition of “all practices which [make unavailable or deny] a dwelling on prohibited grounds,” including land use restrictions. See Devereux Foundation, Inc. v. O’Donnell, 1990 WL 132406 at *9, n. 12 and n. 13, 1990 U.S.Dist.Lexis 11831 at 13, n. 12 and n. 13 (E.D.Pa.1990) (holding section 3604(f)(3)(B) applicable to zoning variance determinations); A.F.A.P.S. v. Regulation and Permits Admin., 740 F.Supp. 95, 107 (D.P.R.1990); Pit. Brief at 31-33. Indeed, the legislative history states: The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.... House Rep. No. 100-711, 100th Cong., at 24, reprinted in 1988 U.S.Code Cong. & Admin.News 2173, 2185 (1988). Under the statute, plaintiffs can prove discrimination either by proving discriminatory intent or a disparate impact on the statutorily protected class. See Resident Advisory Board v. Rizzo, 564 F.2d 126, 146-48 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Oxford House-Evergreen v. City of Plainfield, 769 F.Supp. 1329, 1343-44 (D.N.J.1991). In this case, based on the preliminary evidence which plaintiffs have adduced, the court concludes that plaintiffs have a substantial likelihood" }, { "docid": "11303923", "title": "", "text": "finding that there was departure from the express factors to be considered. Finally, the sixth factor is irrelevant in the instant case since the challenge is to the manner in which a facially neutral zoning ordinance has been applied. Therefore, since Plaintiffs have failed to come forth with evidence to support their claim of discrimination, the Court must grant Defendant’s motion for summary judgment on this issue. Furthermore, the Court need not even consider whether there is a rational relationship between Defendant’s treatment of Plaintiffs and any foreseeable legitimate governmental interest. C. Plaintiffs’ Claim Under the Fair Housing Amendment Act Unlike Plaintiffs’ equal protection claim, it is not a requirement of their claim under the Fair Housing Amendment Act (FHAA), 42 U.S.C; § 3604(f), that Plaintiffs prove discriminatory intent. Rather, it is sufficient if Plaintiffs prove only that Defendant’s action had a discriminatory impact or effect. Metropolitan Housing Devel. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 933 (2d Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988). If Plaintiffs were able to make out such a prima facie case under the FHAA, then Plaintiff would prevail unless Defendant could prove that “its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve the interest with less discriminatory effect.” Id. at 936 (citing Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148-49 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978)). However, as demonstrated above, Plaintiffs have failed to set forth evidence of discriminatory intent sufficient to withstand Defendant’s motion for summary judgment. Cf. City of Birmingham, 727 F.2d at 565 (adopting the Arlington Heights standards in Fan-Housing cases). Similarly, for the reasons set forth in this Court’s analysis of the first Arlington Heights factor, Plaintiffs have also failed to set forth evidence of discriminatory impact or effect sufficient to withstand Defendant’s motion. Plaintiffs argue, however, that" } ]

[ { "docid": "9637785", "title": "", "text": "his option to terminate. Newman and Schultz Transit then decided to convert the agreement into a traditional lease. The debt Newman owed Schultz Transit was satisfied out of the lease fees. Newman claimed an ITC on the truck, pursuant to the operating agreement, of $5,556 on his 1982 tax return. The Commissioner, believing that the credit was not applicable’ because of the nature of the agreement (i.e., a lease), issued a Notice of Deficiency. The Tax Court found that the Commissioner had correctly characterized the operating agreement as a lease, and confirmed the deficiency. Newman v. Commissioner, 56 T.C.M. (CCH) 748 (1988). This appeal followed. The sole issue on appeal is whether the operating agreement is a lease or a contract between an employer and independent contractor. The parties concede that the issue of tax liability will turn on that determination. II. We turn first to the standard under which we review the decision of the Tax Court. The Supreme Court has stated that “[t]he general characterization of a transaction for tax purposes is a question of law subject to review. The particular facts from which the characterization is to be made are not so subject.” Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16 (1978). In other words, we review de novo the Tax Court’s ultimate determination, as a matter of law, that the agreement was a lease, and we review the factual findings underlying that determination under the “clearly erroneous” standard. Commissioner v. Duberstein, 363 U.S. 278, 291 (1960). Since interpretation of the operating agreement is integral to the ultimate determination of liability, we reject the Commissioner’s contention that we may overturn the Tax Court’s interpretation only if it is clearly erroneous. We are led to that conclusion by the familiar principle that “ ‘the construction of written contracts ... is a question of law for the court and not one of fact for the jury.’ ” Meyers v. Selznick Co., 373 F.2d 218, 223 (2 Cir.1966) (Friendly, J.) (citation omitted); see also Eddy v. Prudence Bonds Corp., 165 F.2d 157, 163 (2 Cir.1947) (L." } ]

[ { "docid": "7117672", "title": "", "text": "about $231.7 million that Compaq had realized in 1992 from the sale of stock in another company. The Commissioner sent a notice of deficiency to Compaq for its federal income taxes that cited, among other things, the Royal Dutch transaction. Compaq filed a petition in the Tax Court for redetermination of the deficiencies and of an accuracy-related penalty for negligence asserted for 1992 under Internal Revenue Code (26 U.S.C.) § 6662. Concluding that the transaction should be disregarded for U.S. income tax purposes, the court upheld the deficiencies and the negligence penalty. The court disallowed the gross dividend income, the foreign tax credit, and the capital losses reported by Compaq on its tax return. Compaq then argued that it should at least be allowed to deduct the out of pocket losses — commissions, margin account interest, and fees — that it had incurred in the course of the transaction, but the court held that the expenses could not be deducted. Compaq appealed. STANDARD OF REVIEW This court reviews the Tax Court’s conclusions of law de novo and its factual findings for clear error. See Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 1302 n. 16, 55 L.Ed.2d 550 (1978); Chamberlain v. Comm’r, 66 F.3d 729, 732 (5th Cir.1995). The Tax Court’s determinations of mixed questions of law and fact are subject to de novo review. See Jones v. Comm’r, 927 F.2d 849, 852 (5th Cir.1991). In particular, “legal conclusion[s]” that transactions are shams in substance are reviewed de novo. Killingsworth v. Comm’r, 864 F.2d 1214, 1217 (5th Cir.1989). See Frank Lyon Co., 435 U.S. at 581 n. 16, 98 S.Ct. at 1302 n. 16 (“The general characterization of a transaction for tax purposes is a question of law subject to review. The particular facts from which the characterization is to be made are not so subject.”). This is true even though the Tax Court has characterized some of its determinations as “ultimate findings of fact.” 113 T.C. at 219. See Ratonasen v. Cal. Dep’t of Human Servs., 11 F.3d 1467, 1469 (9th Cir.1993)." }, { "docid": "13457225", "title": "", "text": "ordinary losses which could be deducted against unrelated ordinary income. As the Commissioner succinctly states on brief, the transactions at issue in this case “consisted of nothing more than the sale for a fee of tax deductions to American taxpayers.” An examination of the record likewise leads us to the conclusion that the transactions had no real economic effect on the taxpayers other than the conference of tax advantages. Thus, even when viewed objectively, the transactions did “not appreciably affect [the taxpayers’] beneficial interest except to reduce [their] tax.” Knetsch, supra, 364 U.S. at 366, 81 S.Ct. at 135 (citation omitted). Indeed, the whole scheme smacks of tax avoidance and the taxpayers fare no better under the objective test than they do under the subjective test. Nevertheless, we are persuaded that a subjective standard is the better approach under section 108. III. CONCLUSION Because we conclude that the Tax Court did not err in finding that the straddle transactions involved in this case were shams in substance, we affirm the Tax Court’s disallowance of appellants’ claimed tax deductions for losses incurred as a result of those transactions. The decision of the Tax Court is AFFIRMED. . Yosha, et. al. v. Commissioner, 861 F.2d 494 (7th Cir.1988). . For a technical explanation of straddle transactions, see Miller v. Commissioner, 836 F.2d 1274 (10th Cir.1988); Yosha, et. al. v. Commissioner, 861 F.2d 494 (7th Cir.1988); Tamari v. Bache & Co. (Lebanon) S.A.L., 838 F.2d 904 (7th Cir.1988). For background information, see generally Black & Scholes, The Pricing of Options and Corporate Liabilities, 81 J.Po.Econ. 637 (1973). . In Falsetti v. Commissioner, 85 T.C. 332, 347 (1985), the Tax Court defined \"sham in substance” as the expedient of drawing up papers to characterize transactions contrary to objective economic realities and which have no economic significance beyond expected tax benefits.\" Id. at 347. The Ninth Circuit has defined a transaction as a sham in substance if it is fictitious or if it has no business purpose or economic effect other than the creation of tax deductions. Sochin v. Commissioner, 843 F.2d 351, 354 (9th" }, { "docid": "5466123", "title": "", "text": "into for profit. The Commissioner disallowed the deductions, and the tax court affirmed. The tax court found that these transactions were substantive shams because the petitioners did not enter into them with a profit motive. Id. at 1162. The court found that this “was a prearranged sequence of trading calculated to achieve a tax-avoidance objective — not investments held for non-tax profit objectives.” Id. at 1163. The court concluded that because these transactions were shams, the losses incurred were not deductible under I.R.C. § 165(c)(2). II. DISCUSSION A. Standard of Review Petitioners have the burden of showing that the transactions were not a sham. Brown v. Commissioner, 85 T.C. 968, 998 (1985) (taxpayers challenging assessment of deficiency have burden of proof). Decisions about whether transactions are shams are normally reviewable under a clearly erroneous standard. See, e.g., Enrici v. Commissioner, 813 F.2d 293, 295 (9th Cir.1987) (“The clearly erroneous standard of review would govern even if the finding that the transactions were shams was inferred from undisputed basic facts concerning the transactions because the inference is still essentially factual.”). Nevertheless, we review the tax court’s conclusions de novo. In this case, the tax court assumed as true the facts alleged for purposes of its analysis. The court itself stated that it was focusing on an issue of law, i.e., whether taxpayers’ allegations, if proven, would be sufficient to achieve the tax results desired. Glass, 87 T.C. at 1172. The court held that these were sham transactions as a matter of law. Stated as such, the standard of review is de novo. See Miller v. Commissioner, 836 F.2d 1274, 1277 (10th Cir.1988) (legal conclusions by tax court reviewed de novo); see generally Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 1302 n. 16, 55 L.Ed.2d 550 (1978) (“The general characterization of a transaction for tax purposes is a question of law subject to review.”); Georgia Power Co. v. Baker, 830 F.2d 163 (11th Cir.1987) (issue of law reviewed de novo). B. Sham Transaction Doctrine The sham transaction doctrine requires courts and the Commissioner to" }, { "docid": "2532141", "title": "", "text": "lacked economic substance. The court also affirmed the penalties for negligence. STANDARD OF REVIEW We uphold the Tax Court’s findings of fact unless clearly erroneous. Polakof v. Commissioner, 820 F.2d 321, 323 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988). We review the Tax Court’s conclusions of law de novo. Sochin v. Commissioner, 843 F.2d 351, 353 (9th Cir.1988), petition for cert. filed, 56 U.S.L.W. 3881 (U.S. May 19, 1988) (No. 87-2026). DISCUSSION I. The Legal Standard Taxpayers contend that the Tax Court applied an incorrect legal standard. The court applied the “generic tax shelter” test, which it first formulated in Rose v. Commissioner, 88 T.C. 386 (1987), appeal filed, No. 88-1012 (6th Cir.). A. The Correct Standard Section 616(a) allows taxpayers to deduct “all expenditures paid or incurred during the taxable year for the development of a mine or other natural deposit ... if paid or incurred after the existence of ores or minerals in commercially marketable quantities has been disclosed.” A taxpayer may deduct development costs only if the primary objective of the mining venture was to make a profit. Thomas v. Commissioner, 792 F.2d 1256, 1259 (4th Cir.1986). However, the court does not inquire into a transaction’s primary objective until it determines that the transaction is bona fide, that is, not a sham. Sochin, 843 F.2d at 353-54 n. 6. In determining the existence of a sham, we apply the So-chin court’s analysis: the court should determine whether the transaction “had any practical economic effects other than the creation of income tax losses.” 843 F.2d at 354. Both the taxpayer’s subjective business purpose and the venture’s economic substance may be relevant to this inquiry. Id. B. The Tax Court’s Standard The Tax Court here applied its new generic tax shelter test. Under that test, the court determines whether the disputed scheme is a generic tax shelter and then determines whether the transaction has economic substance. Rose, 88 T.C. at 410-12. After finding that the mining venture was a generic tax shelter, the court analyzed “whether the dealings between the parties to" }, { "docid": "13457226", "title": "", "text": "claimed tax deductions for losses incurred as a result of those transactions. The decision of the Tax Court is AFFIRMED. . Yosha, et. al. v. Commissioner, 861 F.2d 494 (7th Cir.1988). . For a technical explanation of straddle transactions, see Miller v. Commissioner, 836 F.2d 1274 (10th Cir.1988); Yosha, et. al. v. Commissioner, 861 F.2d 494 (7th Cir.1988); Tamari v. Bache & Co. (Lebanon) S.A.L., 838 F.2d 904 (7th Cir.1988). For background information, see generally Black & Scholes, The Pricing of Options and Corporate Liabilities, 81 J.Po.Econ. 637 (1973). . In Falsetti v. Commissioner, 85 T.C. 332, 347 (1985), the Tax Court defined \"sham in substance” as the expedient of drawing up papers to characterize transactions contrary to objective economic realities and which have no economic significance beyond expected tax benefits.\" Id. at 347. The Ninth Circuit has defined a transaction as a sham in substance if it is fictitious or if it has no business purpose or economic effect other than the creation of tax deductions. Sochin v. Commissioner, 843 F.2d 351, 354 (9th Cir.), cert. denied, — U.S. —, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988). . The United States Supreme Court earlier indicated that a \"for profit” provision in a tax de duction context should be governed by a subjective standard. Helvering v. National Grocery Co., 304 U.S. 282, 289 n. 5, 58 S.Ct. 932, 936 n. 5, 82 L.Ed. 1346 (1938). The language of § 165(c)(2) is as follows: losses incurred in any transaction entered into for profit, though not connected with a trade or business ... 26 U.S.C. § 165(c)(2) (West 1988) (emphasis added). . For a summary of the legislative history of amended § 108, see Glass v. Commissioner, 87 T.C. 1087, 1168-69. . Wehrly has been subsequently displaced by Landreth v. Commissioner, 859 F.2d 643 (9th Cir.1988), in which the Ninth Circuit held that \"section 108 allows taxpayers to deduct losses from straddle transactions only if they can show that their primary motive for entering into the transactions was economic profit.” Id. at 649 (emphasis in original) (citations omitted). Thus, the Ninth Circuit" }, { "docid": "7117673", "title": "", "text": "novo and its factual findings for clear error. See Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 1302 n. 16, 55 L.Ed.2d 550 (1978); Chamberlain v. Comm’r, 66 F.3d 729, 732 (5th Cir.1995). The Tax Court’s determinations of mixed questions of law and fact are subject to de novo review. See Jones v. Comm’r, 927 F.2d 849, 852 (5th Cir.1991). In particular, “legal conclusion[s]” that transactions are shams in substance are reviewed de novo. Killingsworth v. Comm’r, 864 F.2d 1214, 1217 (5th Cir.1989). See Frank Lyon Co., 435 U.S. at 581 n. 16, 98 S.Ct. at 1302 n. 16 (“The general characterization of a transaction for tax purposes is a question of law subject to review. The particular facts from which the characterization is to be made are not so subject.”). This is true even though the Tax Court has characterized some of its determinations as “ultimate findings of fact.” 113 T.C. at 219. See Ratonasen v. Cal. Dep’t of Human Servs., 11 F.3d 1467, 1469 (9th Cir.1993). DISCUSSION “[Wjhere ... there is a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached, the Government should honor the allocation of rights and duties effectuated by the parties.” Frank Lyon Co., 435 U.S. at 583-84, 98 S.Ct. at 1303-04. See Holladay v. Comm’r, 649 F.2d 1176, 1179 (5th Cir. Unit B Jul.1981) (“[T]he existence of a tax benefit resulting from a transaction does not automatically make it a sham as long as the transaction is imbued with tax-independent considerations.”), cited in Merryman v. Comm’r, 873 F.2d 879, 881 (5th Cir.1989). The Government has stipulated that aside from its contention that the Royal Dutch transaction lacked economic substance, it has no objection to how Compaq chose to report its tax benefits and liabilities concerning the transaction. In Rice’s Toyota World, Inc. v. Comm’r, 752 F.2d 89 (4th Cir.1985), the court held that after Frank Lyon Co., it is appropriate for" }, { "docid": "5466124", "title": "", "text": "is still essentially factual.”). Nevertheless, we review the tax court’s conclusions de novo. In this case, the tax court assumed as true the facts alleged for purposes of its analysis. The court itself stated that it was focusing on an issue of law, i.e., whether taxpayers’ allegations, if proven, would be sufficient to achieve the tax results desired. Glass, 87 T.C. at 1172. The court held that these were sham transactions as a matter of law. Stated as such, the standard of review is de novo. See Miller v. Commissioner, 836 F.2d 1274, 1277 (10th Cir.1988) (legal conclusions by tax court reviewed de novo); see generally Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 1302 n. 16, 55 L.Ed.2d 550 (1978) (“The general characterization of a transaction for tax purposes is a question of law subject to review.”); Georgia Power Co. v. Baker, 830 F.2d 163 (11th Cir.1987) (issue of law reviewed de novo). B. Sham Transaction Doctrine The sham transaction doctrine requires courts and the Commissioner to look beyond the form of a transaction and to determine whether its substance is of such a nature that expenses or losses incurred in connection with it are deductible under an applicable section of the Internal Revenue Code. If a transaction’s form complies with the Code’s requirements for deductibility, but the transaction lacks the factual or economic substance that form represents, then expenses or losses incurred in connection with the transaction are not deductible. The sham transaction doctrine emerged from the Supreme Court’s decision in Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). In Gregory, the Court affirmed the Commissioner in denying deductions claimed by taxpayers for losses and expenses incurred in a corporate reorganization. The taxpayers had followed each step required by the Code for the reorganization. Nevertheless, the Court held these losses nondeductible. The Court held that this transaction was a “mere device” for the “consummation of a preconceived plan” and not a reorganization within the intent of the Code as it then existed. Id. at 469, 55" }, { "docid": "2328209", "title": "", "text": "the Tax Court and remain at issue on appeal. See Brief for Appellants at 12, 18-19; Brief for Appellee at 15 — 16 & n. 18. . The term “Communications Group” will also be used to encompass Mentco Corporation, the company that assumed responsibility for the administration and management of the Communications Group's portfolio of leases in 1981. . While most courts refer to these principles under the general heading of the sham transaction doctrine, some courts reserve the term “sham,” as did the Tax Court in this case, see 87 T.C. at SI8, for transactions which occur only on paper or do not, in fact, occur. Other courts distinguish between the mere paper chase, calling it a factual sham, and transactions which do occur but lack economic substance, so-called substantive shams. See, e.g., Killingsworth v. Commissioner, 864 F.2d 1214, 1216 & n. 3 (5th Cir.1989); Kirchman v. Commissioner, 862 F.2d 1486, 1492 (11th Cir.1989). The Commissioner does not contend that the transactions at issue were factual shams. . Some circuits treat sham determinations as questions of fact. See, e.g., Keane v. Commissioner, 865 F.2d 1088, 1090 (9th Cir.1989); Rice's Toyota, 752 F.2d 89, 92 (4th Cir.1985); Comdisco, Inc. v. United States, 756 F.2d 569, 575 (7th Cir.1985); cf. Kirchman v. Commissioner, 862 F.2d 1486, 1490 (11th Cir.1989) (sham determination normally a fact question, but reviewed de novo because Tax Court assumed it was legal conclusion). But see American Realty Trust v. United States, 498 F.2d 1194, 1198-99 (4th Cir. 1974) (cited with approval in Frank Lyon)-, Swift Dodge v. Commissioner, 692 F.2d 651, 652 (9th Cir. 1982) (citing Frank Lyon). In our view, this approach is inconsistent with Frank Lyon, 435 U.S. at 581 n. 16, 98 S.Ct. at 1302 n. 16." }, { "docid": "14950990", "title": "", "text": "units bought by Mr. Sacks and leased back to BFS Solar were actually leased to homeowners. The solar heating business was not mere paper. Cf. Cook v. Commissioner, 941 F.2d 734 (9th Cir.1991). The metal and glass existed and was placed into use on houses for solar water heating. In 1983, Mr. Sacks bought another five units. A similar sale and leaseback transaction, and a similar management agreement, were used. These five units were also real, and were leased to homeowners. Mr. Sacks claimed depreciation and investment tax credits for the units on his 1983, 1984, and 1985 tax returns. The Commissioner disallowed these deductions and credits, and asserted deficiencies on the ground that the sale leaseback transactions were shams. The Tax Court sustained the Commissioner’s determination, and Mr. Sacks appeals. II. ANALYSIS Mr. Sacks was entitled to his claimed depreciation deductions and investment tax credits (both regular and business energy) on the solar energy equipment only if the equipment was “used in the trade or business” or “held for the production of income.” 26 U.S.C. §§ 48(a), 167(a). The Tax Court held that the equipment was not so used, and therefore Mr. Sacks was not entitled to the deductions and credits, because his investment was a sham transaction. A. Standard of Review. The critical issue in this case is whether the Tax Court erred in deciding that the sale-leaseback transaction between BFS Solar and Mr. Sacks was a sham. Our standard of review is not entirely clear. We have held that we review such a determination for clear error, Erhard v. Commissioner, 46 F.3d 1470, 1476 (9th Cir.1995), but we have also noted the Supreme Court’s holding that “the general characterization of a transaction for tax purposes as a sham is a question of law” subject to review de novo. Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 1302 n. 16, 55 L.Ed.2d 550 (1978), discussed in, Casebeer v. Commissioner, 909 F.2d 1360, 1362 n. 6 (9th Cir.1990). We reconcile these authorities by construing them to mean that the underlying factual determinations" }, { "docid": "17308387", "title": "", "text": "his $10,000 investment generated a $100,160 ordinary loss in 1979, and a $106,382 net long-term capital gain in 1981. The net gain of $6,222 before taxes was reduced to a net overall profit of $122 after the deduction of $6100 in fees. Brown deducted the alleged losses and reported the subsequent gains on his federal income tax returns for 1979 and 1981, respectively. Sochin, who was employed by Harsh Investment Corporation, participated in the program with a group of the corporation’s employees. His $2000 portion of the group investment generated a $20,080 ordinary loss in 1979, and a $21,961 net long-term capital gain in 1981. The net gain of $1,881 before taxes was reduced to a net overall profit of $461 after the deduction of $1,420 in fees. DISCUSSION I. The Proper Legal Standard for the “Sham” Determination Taxpayers argue that the tax court failed to apply the correct legal standard to determine whether the investments were shams. The tax court’s conclusion that the transactions were shams is a finding of fact that is reviewed under the clearly erroneous standard. Bail Bonds by Marvin Nelson, Inc. v. Commissioner, 820 F.2d 1543, 1548 (9th Cir.1987). However, the legal standard applied by the tax court in making the sham determination is reviewed de novo. Id. A. The Proper Test We noted in Bail Bonds that courts “typically focus” on the related factors of whether the taxpayer has shown 1) a non-tax business purpose (a subjective analysis), and 2) that the transaction had “economic substance” beyond the generation of tax benefits (an objective analysis). 820 F.2d at 1549. However, we did not intend our decision in Bail Bonds to outline a rigid two-step analysis. Instead, the consideration of business purpose and economic substance are simply more precise factors to consider in the application of this court’s traditional sham analysis; that is, whether the transaction had any practical economic effects other than the creation of income tax losses. See, e.g., Neely v. United States, 775 F.2d 1092, 1094 (9th Cir.1985); Thompson v. Commissioner, 631 F.2d 642, 646 (9th Cir.1980), cert. denied, 452 U.S. 961," }, { "docid": "2328195", "title": "", "text": "reduction, on a taxpayer’s beneficial interest will not be recognized for tax purposes. See Knetsch v. United States, 364 U.S. 361, 366, 81 S.Ct. 132, 135, 5 L.Ed.2d 128 (1960). A transaction will be accorded tax recognition only if it has “economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached.” Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 1303, 55 L.Ed.2d 550 (1978). The Tax Court has at times applied a two-prong standard for guiding a sham determination. See, e.g., Rice’s Toyota World, Inc. v. Commissioner, 81 T.C. 184, 202-03 & n. 17, 209 (1983), aff'd in part, rev’d in part on other grounds, 752 F.2d 89 (4th Cir.1985). The Fourth Circuit has expressly adopted this two-prong standard requiring both a subjective and an objective inquiry, in that “[t]o treat a transaction as a sham, the court must find [1] that the taxpayer was motivated by no business purposes other than obtaining tax benefits ... and [2] that the transaction has no economic substance because no reasonable possibility of a profit exists.” Rice’s Toyota, 752 F.2d at 91-92. The better approach, in our view, holds that “the consideration of business purpose and economic substance are simply more precise factors to consider in the [determination of] whether the transaction had any practical eco nomic effects other than the creation of income tax losses.” Sochin v. Commissioner, 843 F.2d 351, 354 (9th Cir.), cert. denied, — U.S. -, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988). In reviewing the Tax Court’s decision in this case, we accept all factual findings that are not clearly erroneous. And, based upon these findings, we review de novo the ultimate characterization of the transactions as shams. See Frank Lyon, 435 U.S. at 581 n. 16, 98 S.Ct. at 1302 n. 16; Knetsch, 364 U.S. at 365, 81 S.Ct. at 134 (characterizing sham finding as conclusion of law); Newman v. Commissioner, 894 F.2d 560 (2d Cir.1990); Killingsworth v. Commissioner, 864 F.2d 1214," }, { "docid": "5466126", "title": "", "text": "S.Ct. at 267-268. Because the transaction lacked economic substance, as opposed to formal reality, it was not “the thing which the statute intended.” Id. The sham transaction doctrine has become widely accepted, see generally B. Bittker, Federal Taxation of Income, Estates and Gifts p 4.3.3 (1981 and Supp. 1988), as has the general notion that courts should look at the substance of a transaction rather than just its form. See generally Frank Lyon Co. v. United States, 435 U.S. 561, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978) (Court looked at economic substance or reality of sale and leaseback transactions); Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960) (interest expense deductions disallowed because only thing of substance to be realized in transaction was tax deduction); Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945) (creating step transaction doctrine, whereby courts must consider all steps of transaction in light of entire transaction, so that substance of transaction will control over form of each step). While it is true that a taxpayer can structure a transaction to minimize tax liability under the Internal Revenue Code, Gregory, 293 U.S. at 469, 55 S.Ct. at 267-268, that transaction must nevertheless have economic substance in order to be “the thing which the statute intended.” Id. Taxpayers deducted the losses in this case under I.R.C. § 165. I.R.C. § 165(a) allows losses in general to be deducted from a taxpayer’s taxable income. I.R.C. § 165(c)(2) limits those deductible losses to “losses incurred in transactions, not in connection with a trade or business, entered into for profit.” This statute was clearly aimed at economically-motivated, or profit-motivated, transactions. Miller v. Commissioner, 836 F.2d 1274, 1278-79 (10th Cir.1988). If a transaction is not motivated by profit or economic advantage, then that transaction is a sham for purposes of analysis under I.R.C. § 165(c)(2). See Boynton v. Commissioner, 649 F.2d 1168, 1172 (5th Cir. Unit B 1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1009, 71 L.Ed.2d 299 (1982); cf. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266," }, { "docid": "20459886", "title": "", "text": "cert. denied,-U.S.-, 131 S.Ct. 355, 178 L.Ed.2d 149 (2010); see also Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978) (\"The general characterization of a transaction for tax purposes is a question of law subject to review.\"). The Government incorrectly contends that Merryman v. Comm’r, 873 F.2d 879 (5th Cir.1989), establishes that sham-partnership determinations are reviewed only for clear error. Merryman's application of the clearly-erroneous standard of review to the Tax Court’s decision in a sham-partnership case was the result of the unusual fact that the petitioning taxpayers \"agreed with the law applied by the Tax Court” and challenged only the underlying factual findings. Id. at 881. Merryman did not unseat the well-established rule in this Circuit that \" 'legal conclusion[s]’ that transactions are shams in substance are reviewed de novo.” Compaq Computer Corp. v. Comm’r, 277 F.3d 778, 780-81 (5th Cir.2001) (alteration in original) (quoting Killingsworth v. Comm’r, 864 F.2d 1214, 1217 (5th Cir.1989)); see also id. at 781 n. 1 (considering and rejecting the argument that this Court should review the legal conclusion that a transaction is a sham only for clear error). . Klamath, 568 F.3d at 544. . Id.; accord Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1355 (Fed.Cir.2006) (\"[A] lack of economic substance is sufficient to disqualify the transaction without proof that the taxpayer’s sole motive is tax avoidance.”). . To say that a transaction is shaped totally by tax-avoidance features is, in essence, to say that the transaction is imbued solely with tax-dependent considerations. . Klamath, 568 F.3d at 543 (quoting Higgins v. Smith, 308 U.S. 473, 476, 60 S.Ct. 355, 84 L.Ed. 406 (1940)); see also Coltec, 454 F.3d at 1355 (\"[T]he objective economic substance inquiry [asks] 'whether the transaction affected the taxpayer's financial position in any way.’ ” (quoting IRS v. CM Holdings, Inc. (In re CM Holdings, Inc.), 301 F.3d 96, 103 (3d Cir.2002))). . \"[A] circular flow of funds among related entities does not indicate a substantive economic transaction for tax purposes.” Merry-man, 873 F.2d at 882. ." }, { "docid": "20459885", "title": "", "text": "L.Ed. 226 (1939))). . Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1353-54 (Fed.Cir.2006). . Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 79 L.Ed. 596 (1935). . Coltec, 454 F.3d at 1355. . Boynton v. Comm’r, 649 F.2d 1168, 1172 (5th Cir. Unit B July 1981). . Moline Props., Inc. v. Comm’r, 319 U.S. 436, 439, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943). . See, e.g., Estate of Strangi v. Comm’r, 293 F.3d 279, 281-82 (5th Cir.2002); ASA Investerings P’ship v. Comm’r, 201 F.3d 505, 512-13 (D.C.Cir.2000). . Wells Fargo & Co. v. United States, 641 F.3d 1319, 1325 (Fed.Cir.2011) (citing Griffiths v. Helvering, 308 U.S. 355, 357, 60 S.Ct. 277, 84 L.Ed. 319 (1939)). . See Blueberry Land Co. v. Comm’r, 361 F.2d 93, 101 (5th Cir.1966) (\"[C]ourts will, and do, look beyond the superficial formalities of a transaction to determine the proper tax treatment.”). . Klamath Strategic Inv. Fund v. United States, 568 F.3d 537, 543 (5th Cir.2009). . Duffie v. United States, 600 F.3d 362, 364 (5th Cir.), cert. denied,-U.S.-, 131 S.Ct. 355, 178 L.Ed.2d 149 (2010); see also Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978) (\"The general characterization of a transaction for tax purposes is a question of law subject to review.\"). The Government incorrectly contends that Merryman v. Comm’r, 873 F.2d 879 (5th Cir.1989), establishes that sham-partnership determinations are reviewed only for clear error. Merryman's application of the clearly-erroneous standard of review to the Tax Court’s decision in a sham-partnership case was the result of the unusual fact that the petitioning taxpayers \"agreed with the law applied by the Tax Court” and challenged only the underlying factual findings. Id. at 881. Merryman did not unseat the well-established rule in this Circuit that \" 'legal conclusion[s]’ that transactions are shams in substance are reviewed de novo.” Compaq Computer Corp. v. Comm’r, 277 F.3d 778, 780-81 (5th Cir.2001) (alteration in original) (quoting Killingsworth v. Comm’r, 864 F.2d 1214, 1217 (5th Cir.1989)); see also id. at 781 n. 1 (considering and rejecting" }, { "docid": "2328196", "title": "", "text": "other than obtaining tax benefits ... and [2] that the transaction has no economic substance because no reasonable possibility of a profit exists.” Rice’s Toyota, 752 F.2d at 91-92. The better approach, in our view, holds that “the consideration of business purpose and economic substance are simply more precise factors to consider in the [determination of] whether the transaction had any practical eco nomic effects other than the creation of income tax losses.” Sochin v. Commissioner, 843 F.2d 351, 354 (9th Cir.), cert. denied, — U.S. -, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988). In reviewing the Tax Court’s decision in this case, we accept all factual findings that are not clearly erroneous. And, based upon these findings, we review de novo the ultimate characterization of the transactions as shams. See Frank Lyon, 435 U.S. at 581 n. 16, 98 S.Ct. at 1302 n. 16; Knetsch, 364 U.S. at 365, 81 S.Ct. at 134 (characterizing sham finding as conclusion of law); Newman v. Commissioner, 894 F.2d 560 (2d Cir.1990); Killingsworth v. Commissioner, 864 F.2d 1214, 1217 (5th Cir.1989) (substantive shams reviewable de novo); cf. Miller v. Commissioner, 836 F.2d 1274, 1277 (10th Cir.1988) (whether transactions were “entered into for profit” for purposes of I.R.C. §§ 108 & 165(c)(2) reviewable de novo). With these standards in mind, we turn to an analysis of the transactions at issue. II The Tax Court expressly found that the purchase-and-lease transactions involving the Communications Group, the various computer equipment manufacturers, the financing banks, and the lessees of the computer equipment were legitimate transactions, negotiated at arm’s length, reflecting competitive market terms. Petitioners argue that since the Communications Group was nominally their authorized agent in these legitimate transactions, it is inconsistent for the Tax Court to find that the portions of this arrangement involving the joint ventures lacked economic substance. This argument is fundamentally in error. First, the Tax Court found that although the relationship between the joint ventures and the Communications Group was labeled a principal-agent relationship, in substance the parties were principals acting for their own account. The court noted that the large markup" }, { "docid": "2328197", "title": "", "text": "1217 (5th Cir.1989) (substantive shams reviewable de novo); cf. Miller v. Commissioner, 836 F.2d 1274, 1277 (10th Cir.1988) (whether transactions were “entered into for profit” for purposes of I.R.C. §§ 108 & 165(c)(2) reviewable de novo). With these standards in mind, we turn to an analysis of the transactions at issue. II The Tax Court expressly found that the purchase-and-lease transactions involving the Communications Group, the various computer equipment manufacturers, the financing banks, and the lessees of the computer equipment were legitimate transactions, negotiated at arm’s length, reflecting competitive market terms. Petitioners argue that since the Communications Group was nominally their authorized agent in these legitimate transactions, it is inconsistent for the Tax Court to find that the portions of this arrangement involving the joint ventures lacked economic substance. This argument is fundamentally in error. First, the Tax Court found that although the relationship between the joint ventures and the Communications Group was labeled a principal-agent relationship, in substance the parties were principals acting for their own account. The court noted that the large markup on the “sales” between the Communications Group and the joint ventures was inconsistent with an agency relationship, especially since the Group did nothing to enhance the value of the computer equipment. The only service provided by the Group was arranging financing, and the court found that the Group was more than fully compensated for this service through the substantial implementation, management, and performance fees the joint ventures paid. The Tax Court also noted that when the Communications Group repurchased at a savings computer equipment that one of the financing banks had repossessed, it did not pass these savings on to its purported principal, JV# 2. We agree with the Tax Court’s conclusion that the relationship between the joint ventures and the Communications Group was inconsistent with a true agency. The parties were careful to structure their transactions separately, never allowing the Group to bind the joint ventures as their “agent.” For example, the joint ventures expressly disclaimed any liability on debt incurred by the Group to finance purchases “on behalf of” the joint ventures. Rather," }, { "docid": "5466127", "title": "", "text": "it is true that a taxpayer can structure a transaction to minimize tax liability under the Internal Revenue Code, Gregory, 293 U.S. at 469, 55 S.Ct. at 267-268, that transaction must nevertheless have economic substance in order to be “the thing which the statute intended.” Id. Taxpayers deducted the losses in this case under I.R.C. § 165. I.R.C. § 165(a) allows losses in general to be deducted from a taxpayer’s taxable income. I.R.C. § 165(c)(2) limits those deductible losses to “losses incurred in transactions, not in connection with a trade or business, entered into for profit.” This statute was clearly aimed at economically-motivated, or profit-motivated, transactions. Miller v. Commissioner, 836 F.2d 1274, 1278-79 (10th Cir.1988). If a transaction is not motivated by profit or economic advantage, then that transaction is a sham for purposes of analysis under I.R.C. § 165(c)(2). See Boynton v. Commissioner, 649 F.2d 1168, 1172 (5th Cir. Unit B 1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1009, 71 L.Ed.2d 299 (1982); cf. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). Naturally, the profit or economic motivation cannot be merely tax benefits. Although Section 108 of the Deficit Reduction Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, 630 (1984) (“Section 108”), provides for deduction of losses incurred in closing one leg of a straddle transaction, in order for Section 108 to apply, the underlying transaction must not be a sham. Miller, 836 F.2d at 1278-79; see also Neely v. United States, 775 F.2d 1092, 1094 (9th Cir.1985). The Eleventh Circuit recently affirmed a tax court decision holding that Section 108 does not apply where the transactions involved are shams. Forseth v. Commissioner, 85 T.C. 127 (1985) (holding commodity straddle transactions shams because of lack of economic substance), affd without published opinion sub nom. Wooldridge v. Commissioner, 800 F.2d 266 (11th Cir.1986). The analysis of whether something is a sham, then, must occur before analysis of the for-profit test of I.R.C. § 165(c)(2) and Section 108. See Sochin v. Commissioner, 843 F.2d 351, 353-54 n. 6 (9th Cir.1988) (Section 108 does not" }, { "docid": "14950991", "title": "", "text": "U.S.C. §§ 48(a), 167(a). The Tax Court held that the equipment was not so used, and therefore Mr. Sacks was not entitled to the deductions and credits, because his investment was a sham transaction. A. Standard of Review. The critical issue in this case is whether the Tax Court erred in deciding that the sale-leaseback transaction between BFS Solar and Mr. Sacks was a sham. Our standard of review is not entirely clear. We have held that we review such a determination for clear error, Erhard v. Commissioner, 46 F.3d 1470, 1476 (9th Cir.1995), but we have also noted the Supreme Court’s holding that “the general characterization of a transaction for tax purposes as a sham is a question of law” subject to review de novo. Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16, 98 S.Ct. 1291, 1302 n. 16, 55 L.Ed.2d 550 (1978), discussed in, Casebeer v. Commissioner, 909 F.2d 1360, 1362 n. 6 (9th Cir.1990). We reconcile these authorities by construing them to mean that the underlying factual determinations are reviewed for clear error, but the correctness of the legal standards applied by the Tax Court, and the application of the legal standards to the facts found, are reviewed de novo. B. Sham Transactions Generally. It has long been the law that a transaction with no economic effects, in which the underlying documents are a device to conceal its true purpose, does not control the incidence of taxes. Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596 (1935). As Judge Learned Hand explained, where the “intent[ ] or purpose[] was merely to draught the papers, in fact not to create corporations” this purpose defeated the intended tax benefit. The intent which caused the transaction to be a sham was “not the accompanying purpose to escape taxation; that purpose was legally neutral.” Chisholm v. Commissioner, 79 F.2d 14, 15 (2d Cir.1935). In a sale-leaseback transaction, the seller of property typically intends to possess it, yet sells the property to another, who leases it back. Whether a sale-leaseback is mere paper" }, { "docid": "2931094", "title": "", "text": "A. The Sham “Losses” The primary issue in this appeal turns on section 165, the general loss provision of the Internal Revenue Code, and section 108(a) of the Tax Reform Act of 1984, which governs the deductibility of losses from commodity straddles claimed for tax years prior to 1982. The basic rule of law is that taxation is based upon substance, not form. Gregory v. Helvering, 293 U.S. at 469-70, 55 S.Ct. at 267-68; Knetsch v. United States, 364 U.S. 361, 366, 81 S.Ct. 132, 135, 5 L.Ed.2d 128 (1960); Gilbert v. Commissioner, 262 F.2d 512, 513 (2d Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Treas. Reg. § 1.165-l(b) (as amended in 1977) (“Only a bona fide loss is allowable. Substance and not mere form shall govern in determining a deductible loss.”); see also 7 J. Mertens, supra, § 28.26. Losses resulting from sham transactions, therefore, are not deductible under section 165 of the Code. Forseth v. Commissioner, 845 F.2d 746, 748 (7th Cir.1988); see also Higgins v. Smith, 308 U.S. 473, 476-78, 60 S.Ct. 355, 357-58, 84 L.Ed. 406 (1940) (discussing section that was predecessor to section 165). A transaction is a sham if it is fictitious or if it has no business purpose or economic effect other than the creation of tax deductions. Sochin v. Commissioner, 843 F.2d 351, 354 (9th Cir.) (sham losses from investments in straddles in forward contracts to buy and sell “Ginnie Maes” and “Freddie Macs”), cert. denied, — U.S. -, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988); Goldstein v. Commissioner, 364 F.2d 734, 741-42 (2d Cir.1966) (interest deduction disallowed where transaction had no substance or purpose aside from taxpayer’s desire to obtain tax benefit of interest deduction), cert. denied, 385 U.S. 1005, 87 S.Ct. 708, 17 L.Ed. 2d 543 (1967); Barnett v. Commissioner, 364 F.2d 742 (2d Cir.1966) (per curiam) (interest deduction disallowed where transaction was sham), cert. denied, 385 U.S. 1005, 87 S.Ct. 708, 17 L.Ed.2d 543 (1967). The taxpayer argues first that the transactions were not sham. The Commissioner’s findings were presumptively correct and the" }, { "docid": "5466130", "title": "", "text": "be entered into for profit, and that the analysis of the for-profit test under these provisions focuses on the subjective intent of the taxpayer. See e.g., Helvering v. National Grocery Co., 304 U.S. 282, 58 S.Ct. 932, 82 L.Ed. 1346 (1938); Miller v. Commissioner, 836 F.2d 1274, 1280 (10th Cir.1988) (“the meaning of ‘transaction entered into for profit’ has been settled at least since 1938, when the Supreme Court indicated that a subjective standard is applied and the taxpayer’s primary motive must be one of profit”). Under I.R.C. § 165(c)(2), courts evaluate whether a taxpayer entered the transactions “primarily for profit,” Miller, 836 F.2d 1280, and the test under Section 108 is the same. Id.; see also Landreth v. Commissioner, 859 F.2d 643 (9th Cir.1988). Naturally, the evaluation of the level of profit motive possessed by a taxpayer in entering into a transaction involves an inquiry into the subjective motive or intent of the taxpayer. The analysis of whether a transaction is a substantive sham, however, addresses whether a transaction’s substance is that which its form represents. That does not necessarily require an analysis of a taxpayer’s subjective intent. Once a court determines a transaction is a sham, no further inquiry into intent is necessary. The focus of the inquiry under the sham transaction doctrine is whether a transaction has economic effects other than the creation of tax benefits. Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960). Several courts have focused on two related factors, business purpose and economic substance, to determine whether a transaction is a sham. See, e.g., Bail Bonds by Marvin Nelson, Inc. v. Commissioner, 820 F.2d 1543, 1549 (9th Cir.1987); Rice’s Toyota World, Inc. v. Commissioner, 752 F.2d 89, 91 (4th Cir.1985). The determination of whether the taxpayer had a legitimate business purpose in entering into the transaction involves a subjective analysis of the taxpayer’s intent. The inquiry into whether the transaction had economic substance beyond the creation of tax benefits, however, does not involve a subjective inquiry. Bail Bonds by Marvin Nelson, Inc., 820 F.2d at 1549 (“The economic" } ]

[ { "docid": "12341207", "title": "", "text": "that affects or could affect the usability of the facility, must ensure that the altered portions' of the office are, to the maximum extent feasible at the time of the alterations, readily accessible to and usable by disabled individuals; (3) a provider who practices in an office constructed before the ADA’s effective date (“existing facility”) and whose practice comprises fifteen or more employees must either (a) ensure that his or her office is accessible to disabled individuals, or (b) arrange to provide disabled individuals with the same medical services ordinarily rendered in the provider’s office at an alternative, accessible location selected by the provider; and (4) a provider who practices in an existing facility and whose practice comprises fewer than fifteen employees may refer disabled individuals to another, accessible provider if, after consulting with the person seeking his or her services, the provider determines that he or she cannot accommodate the individual in his or her office without making significant alterations. 1. New Construction “The overall policy of the ADA is to require relatively few changes to existing buildings, but to impose extensive design requirements when buildings are modified or replaced.” Coalition of Montanans Concerned with Disabilities v. Gallatin Airport Auth., 957 F.Supp. 1166, 1168 (D.Mont.1997). The program accessibility regulations therefore impose more demanding requirements on “new construction” than on “existing facilities.” See Kinney v. Yerusalim, 812 F.Supp. 547, 549 (E.D.Pa.), aff'd, 9 F.3d 1067 (3d Cir.1993). Pursuant to the regulations, any facility constructed after the effective date of the ADA (January 26, 1992) must be “readily accessible to and usable by individuals with disabilities.” 35 C.F.R. § 35.151(a). Similarly, any alteration “that affects or could affect the usability of the facility,” if commenced after the ADA’s effective date, must “to the maximum extent feasible, be [made] in such a manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities.” 35 C.F.R. § 35.151(b). Because “architectural barriers can be avoided at little or no cost” during the construction or alteration of buildings, 28 C.F.R. Pt. 35, App. A at 486, the provisions" } ]

[ { "docid": "5310443", "title": "", "text": "of Pancakes Franchisee, 844 F.Supp. 574, 588 (SD.Cal.1993). In enacting the ADA, Congress also recognized the national interest in preserving significant historical structures by imposing requirements that allow operators of such structures to become ADA compliant without threatening the historical significance of such structures. ’ See 42 U.S.C. § 12204(c); H.R.Rep. No. 101-485(111), at 73 (1990), re-printed in 1990 U.S.C.C.A.N. 445, 496; H.R.Rep. No. 101-485(IV), at 71 (1990), reprinted in 1990 U.S.C.C.A.N. 512, 560. Accordingly, the ADA must be interpreted bearing this interest in mind. A. New [First Occupied After January 26, 1993] Facilities With respect to “new construction”, the ADA requires the operator to “design and construct facilities ... that are readily accessible to and usable by individuals with disabilities,” unless meeting these requirements would be “structurally impracticable”. 42 U.S.C. § 12183(a)(1). However, the Building was constructed in 1929 and is therefore “an existing facility” rather than “new construction” under the ADA. Accordingly, the Bank did not, and does not, have to meet “new construction” standards under the ADA. B. Existing [First Occupied on or Before January 26, 1993] Facilities Under the ADA, the operator of an existing facility must remove “architectural barriers ... where such removal is readily achievable”. 42 U.S.C. § 12182(b)(2)(A)(iv). If the operator can demonstrate that the removal of a barrier is not “readily achievable”, the operator is required to use “alternative methods” to make its goods, services, facilities, privileges, advantages, or accommodations accessible to individuals with disabilities. Id. § 12182(b)(2)(A)(v). The ADA defines the term “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). The ADA provides that: In determining whether an action is readily achievable, factors to be considered include: (A) the nature and cost of the action needed under this chapter; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity;" }, { "docid": "3863676", "title": "", "text": "§ 36.406(a). In existing but unaltered facilities, barriers must be removed where it is “readily achievable” to do so. The removal of barriers is “readily achievable” when it is “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. §§ 12181(9), 12182(b)(2)(A)(iv). The Ninth Circuit has not decided whether the plaintiff or the defendant bears the burden of proof in showing that removal of an architectural barrier in a non-historic building is readily achievable, but various district courts throughout the Circuit have applied the burden-shifting framework set forth in Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership I, 264 F.3d 999 (10th Cir.2001). See, e.g., Johnson v. Beahm, 2011 WL 3665114 at *2 (E.D.Cal. Aug. 19, 2011); Vesecky v. Garick, Inc., 2008 WL 4446714, at *2 (D.Ariz. Sept. 30, 2008). In Colorado Cross, the Tenth Circuit held that the “[pjlaintiff bears the initial burden of production to present evi dence that a suggested method of barrier removal is readily achievable” and that if plaintiff meets that burden, the burden shifts to the defendant, who “bears the ultimate burden of persuasion regarding its affirmative defense that a suggested method of barrier removal is not readily achievable.” Id., 264 F.3d at 1006. Under either the “alterations” or “readily achievable” provision, whether an architectural element denies full and equal access to persons with disabilities is determined based on the ADAAG. Chapman, 631 F.3d at 945. 2. The Unruh Act and the CDPA The Unruh Act and the CDPA prohibit discrimination on the basis of disability in the full and equal access to the services, facilities, and advantages of public accommodation. Public accommodations constructed subsequent to July 1, 1970 are subject to the requirements of Division 13, Part 5.5 of the California Health & Safety Code, relating to access to public accommodations by physically handicapped persons; and to the provisions of Chapter 7 (commencing with § 4450) of Division 5 of Title 1 of the California Government Code (access to public buildings by physically handicapped persons). Since December 31, 1981, the standards governing the physical accessibility of public" }, { "docid": "5310449", "title": "", "text": "certainly did not) provide a design for a ramp that could tolerably well fit in with the architectural aesthetics of the Baltimore Street entrance. Of course, the cost of such a ramp likely would be significant and could constitute a relevant factor in the “readily achievable” determination. IV. DISCUSSION A. The Light Street Entrance In 1992, the Bank modified the Light Street doors to provide wheelchair access to the Building lobby but, as noted above, did not provide unassisted access to the Banking Hall. Plaintiffs contend that the Bank has not met the ADA’s requirement that existing facilities “remove architectural barriers” where such removal is “readily achievable” because there is no unassisted accessible path from the Light Street entrance to the Banking Hall. 42 U.S.C. § 12182(b)(2)(A)(iv) . The Bank, as operator of the Building which is an “existing facility” under the ADA, must remove architectural barriers to access where “readily achievable”. 42 U.S.C. § 12182(b)(2)(A)(iv). The term “readily achievable” means “easily accom-plishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). Barrier removal is not “ ‘readily achievable’ if it would threaten or destroy the historic significance of’ the Building. ADA Title III DOJ Technical Assistance Manual § III-4.4200. There is no statute of limitations issue as to the 1992 door modification because the Bank has a continuing duty to meet the existing facilities standards. 42 U.S.C. § 12182(b)(2)(A)(iv). Accordingly, regardless of when the Light Street door modification was made, or even if the Light Street doors were in the same condition as when constructed in 1929, Plaintiffs’ claims would be timely. The question is whether the Bank has removed the architectural barrier at the Light Street entrance to the extent readily achievable. Prior to 1992 and, possibly since 1929, the Light Street entrance had a series of steps leading up to the entrance. At the top of the steps, there were two adjacent revolving doors, each of which was flanked by a set of single leaf doors. These doors lead into a vestibule and another set of single leaf doors. The width" }, { "docid": "11838950", "title": "", "text": "note that this is not a case where Foley sought to construct a new facility. See 42 U.S.C. § 12183(a)(1). Nor is it a case where Foley sought to alter an old facility. See id. § 12183(a)(2). It is, instead, a case where Foley was not seeking to make any change, but Disability Rights Enforcement Education Services: Helping You Help Others (hereafter “Disability Rights”) demanded that changes be made because the failure to do so would be discriminatory. See id. 12182(b)(2)(A)(iv). However, a mere failure to remove an architectural barrier discriminatory only “where such remov-is readily achievable.” Id. In other words, the mere existence of the barrier does not bespeak wrongdoing; it only be comes wrongful if removal can be readily achieved. Barrier removal is readily achievable when it is “easily accomplishable and able to be carried out without much difficulty or expense.” Id. § 12181(9). That definition is extremely important. It imposes a much less stringent standard upon owners of existing properties than that imposed upon owners who undertake new construction and are required to show structural impracticability in order to avoid violating the ADA. See id. § 12188(a)(1). It is also less stringent than the “maximum extent feasible” standard imposed upon owners who seek to alter their facilities. See id. § 12183(a)(2). In determining ready achievability, “the nature and cost of the action needed” must be taken into account. Id. § 12181(9)(A). Furthermore, because it was never intended that the nation’s architectural heritage be destroyed under the banner of readily achievable accessibility, special consideration is given to buildings that “are designated as historic under State or local law.” 28 C.F.R. § 36.405(a). As to those, it is important to avoid changes that would “threaten or destroy the historic significance of the building....” Id. § 36.405(b). As the Department of Justice puts it: “Barrier removal would not be considered ‘readily achievable’ if it would threaten or destroy the historic significance of a building or facility that is ... designated as historic under State or local law.” Dep’t of Justice, ADA Title III Technical Assistance Manual: Covering Pub. Accommodations &" }, { "docid": "20347840", "title": "", "text": "Act was enacted in 1990 to address what Congress found to be a “serious and pervasive social problem” of “discrimination against individuals with disabilities” in public accommodations, employment, transportation, and other areas of public life. 42 U.S.C. § 12101(a). In passing the law, Congress expressly found that “individuals with disabilities continually encounter various forms of discrimination” including “the discriminatory effects of architectural, transportation and communication barriers” and “relegation to lesser services, programs, [and] activities.” Id. The ADA was passed “to provide a clear and comprehensive national mandate for the elimination of discrimination against persons with disabilities.” 42 U.S.C. § 12101(b). Title III of the Act bans discrimination against persons with disabilities by owners or operators of public accommodations. It provides that: No individual- shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of-public accommodation. 42 U.S.C. § 12182(a). The ADA imposes different requirements on “existing facilities” than it does on “new construction.” For existing facilities, the Act requires the removal of “architectural barriers ... where such removal is readily achievable,” and permits the use of “alternative methods” where removal of architectural barriers is not readily achievable. 42 U.S.C. § 12182(b)(2)(A)(v). By contrast, in “new construction” — any fácility designed and constructed for “first occupancy” after January 26, 1993 — the Act censures the “failure to design and construct facilities ... that are readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12183(a)(1). This command to build accessible facilities is excepted only if meeting the requirements of the Act would be “structurally impracticable.” Id. See also 28 C.F.R. § 36.401(c) (structural impracticability means “those rare circumstances where the unique characteristics of the terrain prevent the incorporation of accessibility features.”). B. Interpretive Role of the Justice Department The ADA itself sets out only broad principles for the elimination of discrimination against persons with disabilities. Congress granted primary enforcement authority to the Attorney General and also empowered her to issue more specific regulations for compliance with Titles II and III of the" }, { "docid": "6749085", "title": "", "text": "¶¶ 13-14.) The organization’s members include' disabled and non-disabled persons who live throughout the United States. (Id. ¶ 13, 17.) In furtherance of its purpose, Access Today is alleged “to monitor places of public accommodation for compliance with the ADA, [to] disseminate that information to its members and other disabled persons, and [to] ensure that people with disabilities have equal access to, and do not encounter discrimination in, places of public accommodation.” (Id. ¶14.) Access Today claims that it enjoys “organizational standing” to bring this action in its own right, as well as “associational standing” to bring this action on behalf of its disabled members. The gravamen of the amended complaint is that McDonald’s brand restaurants throughout the United States discriminate against disabled persons (1) in contravention of 42 U.S.C. § 12182(b)(2)(A)(iv) by “failing] to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities ... where such removal is readily achievable,” (2) in contravention of 42 U.S.C. § 12183(a)(2) by, with respect to altered facilities, “failing] to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs,” and (3) in contravention of 42 U.S.C. § 12183(a)(1) by “failing] to construct and design [new] facilities ... that are readily accessible to and usable by individuals with disabilities, except where ... structurally impracticable.” (See id. ¶ 1142.) Plaintiffs rely principally upon the Defendants’ alleged non-compliance with certain of the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), found at 28 C.F.R. part 36 Appendix A. (See id. ¶ 46(a)-(z).) Plaintiffs also contend that Defendants’ violations of the ADA constitute per se violations of certain anti-discrimination statutes of the States of New Jersey, California, Vermont, Arizona, Wisconsin, Idaho, Ohio, Nevada and Michigan, each of which are said (unlike Title III) to permit recovery in damages. Plaintiffs seek injunctive relief under the ADA on behalf of a class of disabled individuals against a class of “owner/operators of McDonald’s brand restaurants” of which individual" }, { "docid": "5438085", "title": "", "text": "against persons with disabilities in places of public accommodation. 42 U.S.C. § 12182(a). The ADA provides a private right of action for preventative relief, including an application for a permanent or temporary injunction or restraining order for “any person who is being subjected to discrimination on the basis of disability in violation of’ Title III. Id. §§ 12182(a)(1), 2000a-3(a). A successful plaintiff may also be entitled to attorney fees and costs. Id. § 2000a-3(b). Section 12182(a) provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Id. § 12182(a). Under Title III of the ADA, “discrimination” specifically includes “failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv). The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” Id. § 12181(9). The ADA further sets out several factors to be considered in determining whether removal of architectural barriers is readily achievable: (1) nature and cost of the action; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities, in question to the covered entity. Id. § 12181(9)(A)-(D); see also First Bank Nat’l Ass’n v. FDIC, 79 F.3d 362, 370 n. 8 (3d Cir.1996). Title III of the ADA, however, remains silent as to who bears the burden of proving" }, { "docid": "5310444", "title": "", "text": "or Before January 26, 1993] Facilities Under the ADA, the operator of an existing facility must remove “architectural barriers ... where such removal is readily achievable”. 42 U.S.C. § 12182(b)(2)(A)(iv). If the operator can demonstrate that the removal of a barrier is not “readily achievable”, the operator is required to use “alternative methods” to make its goods, services, facilities, privileges, advantages, or accommodations accessible to individuals with disabilities. Id. § 12182(b)(2)(A)(v). The ADA defines the term “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). The ADA provides that: In determining whether an action is readily achievable, factors to be considered include: (A) the nature and cost of the action needed under this chapter; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. Id. C. Alterations to Existing Facilities When an existing facility is altered in a “manner that affects, or could affect the usability of the facility or part thereof’, the operator is under an obligation to make the alterations “in such a manner that, to the maximum extent feasible, [makes] the altered portions of the facility [ ] readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” Id. § 12183(a)(2). Additional requirements are imposed if the alterations are made to an area of the facility containing a “primary function” — Le., “a major activity for which the facility is intended ... [such" }, { "docid": "19279059", "title": "", "text": "ORDER LAWRENCE K. KARLTON, Senior District Judge. Plaintiff Robert Dodson sues defendant Strategic Restaurants Acquisition Company II, LLC d/b/a Burger King # 09937 alleging violations of the Americans with Disabilities Act and related California statutes. Plaintiff now moves to strike certain affirmative defenses raised in defendant’s answer. This matter was originally set for hearing on June 17, 2013, but has been decided based on the papers submitted. 1. BACKGROUND Plaintiff, who is quadriplegic and uses an electric wheelchair, alleges that he encountered barriers that interfered with his ability “to use and enjoy the goods, services, privileges, and accommodations offered at” a Burger King restaurant in Loomis, California. (Complaint ¶¶ 1, 8, 10.) Defendant owns, leases and/or operates this Burger King. (Id. ¶ 7.) Plaintiff asserts five causes of action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (“ADA”): (1) denial of “full and equal” enjoyment and use of the facility, 42 U.S.C. § 12182(a); (2) failure to remove architectural barriers in an existing facility, 42 U.S.C. § 12182(b)(2)(A)(iv); (3) failure to design and construct an accessible facility, 42 U.S.C. § 12183(a)(1); (4) failure to make an altered facility accessible, 42 U.S.C. § 12183(a)(2); and (5) failure to modify existing policies and procedures, 42 U.S.C. § 12182(b) (2) (A) (ii). Plaintiff also asserts derivative state law claims under the California Disabled Persons Act, Cal. Civ.Code § 54, et seq., the Unruh Civil Rights Act, Cal. Civ.Code § 51, et seq., and relevant provisions of the California Health Safety Code. On April 4, 2013, defendant answered, denying many of plaintiffs factual allegations and raising fourteen affirmative defenses: (1) statute of limitations; (2) unclean hands; (3) accessibility of reasonable portion of facility; (4) good faith; (5) equivalent facilitation; (6) legitimate business purpose; (7) de minimis deviations; (8) reliance upon municipal permits/vested rights; (9) lack of standing for injunctive relief; (10) lack of standing due to no injury in fact; (11) lack of Article III standing; (12) further action would fundamentally alter subject facility, is not technically feasible, or is not structurally readily achievable; (13) failure to name" }, { "docid": "10036282", "title": "", "text": "court determines that Vogel has stated a claim under these two statutes and that he can recover all of his requested relief based on Knight’s violation of these two statutes, it evaluates only these two claims. a. Discrimination Under Title III of the ADA Title III of the ADA prohibits discrimination by public accommodations. It provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Vogel alleges that Knight owns, operates, and/or leases the Rite Aid. Knight is therefore liable for violating the ADA if Vogel shows that he suffered discrimination at the location due to his disability. Discrimination under Title III includes “a failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable.” Id., § 12182(b)(2)(A)(iv). The term “readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” Id., § 12181(9). “To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir.2007) (internal alteration orig inal). In addition, “[t]o succeed on an ADA claim of discrimination on account of one’s disability due to an architectural barrier, the plaintiff must also prove that: (1) the existing facility at the defendant’s place of business [or property] presents an architectural barrier prohibited under the ADA and (2) the removal of the barrier is readily achievable.” Parr v.L&L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1085 (D.Haw.2000); see also Johnson v. Beahm, No. 2:11-cv-0294 MCE JFM, 2011 WL 5508893, *2 (E.D.Cal. Nov. 8, 2011). i. Whether Vogel Has Standing to Bring his ADA Claim" }, { "docid": "7248026", "title": "", "text": "to Plaintiffs motion for summary judgment. Plaintiff seeks summary judgment both on his claims that the alleged architectural barriers violate the ADA and on his claim that Defendant has a discriminatory policy that violates the ADA. The Court first addresses the claims based on alleged architectural barriers and then the policy claim. A. Architectural Barriers With regard to facilities that existed pri- or to January 26, 1992, Title III of the ADA requires the owner of a public accommodation “to remove architectural barriers ... where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. §§ 36.304(a) & 36.508. With regard to alterations to existing facilities after January 26,1992, and new construction completed after January 26, 1993, Title III requires an owner to make the facility “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12183(a); 28 C.F.R. §§ 36.401(a) & 36.402(a). New construction need not be readily accessible if an owner can demonstrate that it is “structurally impracticable.” 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(c). Alterations must be readily accessible only “to the maximum extent feasible.” 42 U.S.C. § 12183(a)(2); 28 C.F.R. § 36.402(c). In addition, new construction and alterations must comply with either the 1991 ADA Standards for Accessible Design (“1991 Standards”), 28 C.F.R. pt. 36, App. D; or the 2010 ADA Standards for Accessible Design (“2010 Standards”), which consist of the 2004 ADA Accessibility Guidelines (“ADAAG”), 36 C.F.R. pt. 1191, Apps. B & D, and the requirements contained in 28 C.F.R. §§ 36.401 through 36.406. 28 C.F.R. §§ 36.104 & 36.406(a). Existing facilities are not required to comply with the Standards, but they serve as a guide in determining whether a condition in an existing facility constitutes a barrier that must be removed if removal is readily achievable. Gathright-Dietrich v. Atlanta Landmarks, Inc., 435 F.Supp.2d 1217, 1226 (N.D.Ga.2005), affd, 452 F.3d 1269 (11th Cir.2006). In making this determination, the court asks whether, under the circumstances of the particular case, the alleged barrier actually or effectively precludes a handicapped individual from using an existing facility on terms sufficiently comparable to non-disabled individuals. Id." }, { "docid": "7248025", "title": "", "text": "broken, in disrepair, and contains impermissible changes in level. Id. at 3, 6, 8. With regard to two curb ramps allegedly having excessive slopes (Barriers 8 and 9), although Defendant installed two new curb ramps, Mr. McKee reports that neither is ADA compliant because one has excessive flare slopes while the other lacks a level landing. Id. at 3, 6, 19-21. Finally, with regard to the alleged improper distribution of the parking spaces reserved for the disabled (Barrier 5), the excessive slopes and/or cross-slopes in three of the parking spaces and access aisles (Barrier 6), and the absence of a striped path of travel between the parking spaces and the curb cuts (Barrier 7), there is no evidence that Defendant attempted to remedy these alleged violations. Id. at 3, 4, 6, 9-18. Therefore, Plaintiffs claims based on Barriers 1-2 and 4-9 are not moot. IV. Plaintiffs Motion for Summary Judgment Having determined that Plaintiff has standing and that his claims based on eight of the nine alleged architectural barriers are not moot, the Court turns to Plaintiffs motion for summary judgment. Plaintiff seeks summary judgment both on his claims that the alleged architectural barriers violate the ADA and on his claim that Defendant has a discriminatory policy that violates the ADA. The Court first addresses the claims based on alleged architectural barriers and then the policy claim. A. Architectural Barriers With regard to facilities that existed pri- or to January 26, 1992, Title III of the ADA requires the owner of a public accommodation “to remove architectural barriers ... where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. §§ 36.304(a) & 36.508. With regard to alterations to existing facilities after January 26,1992, and new construction completed after January 26, 1993, Title III requires an owner to make the facility “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12183(a); 28 C.F.R. §§ 36.401(a) & 36.402(a). New construction need not be readily accessible if an owner can demonstrate that it is “structurally impracticable.” 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(c). Alterations must be readily" }, { "docid": "1524828", "title": "", "text": "III of the ADA by not constructing an access ramp across the strip of grass separating the Store from the public sidewalk. Plaintiff does not seek summary adjudication as to the remaining allegations in the complaint, but contends that there are triable issues of fact as to those claims preventing their disposition through summary judgment. I. Federal Law Claims The Americans with Disabilities Act (the “ADA”) was enacted by Congress in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title III of the ADA prohibits discrimination by private entities against persons with disabilities in places of public accommodation. 42 U.S.C. § 12182(a). Discrimina tion includes “failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv); Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir.2002). To succeed on a claim of discrimination due to an architectural barrier, plaintiff must prove that: (1) the existing facility contains an architectural barrier prohibited by the ADA, and (2) removal of the barrier is readily achievable. Parr v. L & L Drive-Inn Rest., 96 F.Supp.2d 1065, 1085 (D.Haw.2000). A. Failure to Build an Access Ramp Defendants contend that they have no legal obligation to build an access ramp over land which is owned and controlled by the City of Chico. Title III imposes liability for “a failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable; -” 42 U.S.C. § 12182(b)(2)(A)(iv). Facility is defined as including: “only... the site over which the private entity may exercise control or on which a place of public accommodation or a commercial facility is located. It does not include, for example, adjacent roads or walks controlled by a public entity that is not subject to this part. Public entities are subject to the requirements of title II of the Act. The Department’s regulation implementing title II, which will be codified at 28 C.F.R. part 35, addresses the obligations of public entities to ensure accessibility by providing" }, { "docid": "11838949", "title": "", "text": "the National Register of Historic Places ... or are designated as historic under State or local law.” . In, Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1275 (11th Cir.2006), Colorado Cross Disability Coalition v. Hermanson Family Ltd., 264 F.3d 999, 1007 (10th Cir.2001), and Speciner v. NationsBank, N.A., 215 F.Supp.2d 622, 631 (D.Md.2002), courts have considered historical significance as a factor for determining ready achievability without invoking 28 C.F.R. § 36.405 or ADAAG § 4.1.7. Notably, none of these cases rejects the application of 28 C.F.R. § 36.405 and ADAAG § 4.1.7; they simply proceed without analyzing those authorities. FERNANDEZ, Circuit Judge, concurring and dissenting: I concur in the majority’s determination that the district court did not err when it required Foley Estates Vineyard and Winery, LLC, to make changes to the interior of its building pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181-12189 (“ADA”). However, I dissent from the majority’s reversal of the district court’s order denying a demand that Foley make the proposed exterior changes. It is important to note that this is not a case where Foley sought to construct a new facility. See 42 U.S.C. § 12183(a)(1). Nor is it a case where Foley sought to alter an old facility. See id. § 12183(a)(2). It is, instead, a case where Foley was not seeking to make any change, but Disability Rights Enforcement Education Services: Helping You Help Others (hereafter “Disability Rights”) demanded that changes be made because the failure to do so would be discriminatory. See id. 12182(b)(2)(A)(iv). However, a mere failure to remove an architectural barrier discriminatory only “where such remov-is readily achievable.” Id. In other words, the mere existence of the barrier does not bespeak wrongdoing; it only be comes wrongful if removal can be readily achieved. Barrier removal is readily achievable when it is “easily accomplishable and able to be carried out without much difficulty or expense.” Id. § 12181(9). That definition is extremely important. It imposes a much less stringent standard upon owners of existing properties than that imposed upon owners who undertake new construction and are required" }, { "docid": "15516376", "title": "", "text": "House, Inc., 146 F.3d 832, 835 (11th Cir.1998). In fact, “the plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The failure to present proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. Id. DISCUSSION I. Title III of the Americans with Disability Act The Americans with Disability Act is divided into three sections: Title I regulates discrimination in the workplace; Title II prohibits discrimination by public entities; and Title III prohibits discrimination by private entities in places of public accommodation. Title III provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). In a private action under the ADA, a court may provide “any person who is being subjected to discrimination on the basis of disability in violation of’ the Act injunctive relief, requiring a defendant to make its facility readily accessible to and usable by individuals with disabilities. Id. § 12188(a)(2). Discrimination prohibited by the Act includes a private entity’s “failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Where removal is not readily achievable, the entity incurs liability if it fails to make those goods, services and facilities “available through alternative methods if such methods are readily achievable,” that is, “easily accom-plishable and able to be carried out without much difficulty or expense.” The Act sets forth accessibility guidelines, which identify the minimum technical requirements for ADA compliance for new construction and" }, { "docid": "3863675", "title": "", "text": "to buildings that existed as of that date; and the “readily achievable” provisions, which apply to unaltered portions of buildings constructed before January 26,1993. All facilities built for first occupancy after January 26, 1993 are required to be “readily accessible to and usable by persons with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of the ADAAG, 28 C.F.R. pt. 36, app. A. See 42 U.S.C. § 12183(a)(1). All facilities built for first occupancy after January 26, 1993 must comply with the ADAAG. 28 C.F.R. § 36.406. Because Taco Bell 4518 was constructed in 1991, it is not governed by the “new construction” provisions of Title III. However, both the “alteration” and the “readily achievable” provisions do apply. Under the “alteration” provisions, the altered portion of any existing building altered after January 26,1992 is required, to the maximum extent feasible, to be “readily accessible to and useable by” individuals with disabilities. 42 U.S.C. § 12183(a)(2). To meet this standard, alterations must comply with the ADAAG. 28 C.F.R. § 36.406(a). In existing but unaltered facilities, barriers must be removed where it is “readily achievable” to do so. The removal of barriers is “readily achievable” when it is “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. §§ 12181(9), 12182(b)(2)(A)(iv). The Ninth Circuit has not decided whether the plaintiff or the defendant bears the burden of proof in showing that removal of an architectural barrier in a non-historic building is readily achievable, but various district courts throughout the Circuit have applied the burden-shifting framework set forth in Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership I, 264 F.3d 999 (10th Cir.2001). See, e.g., Johnson v. Beahm, 2011 WL 3665114 at *2 (E.D.Cal. Aug. 19, 2011); Vesecky v. Garick, Inc., 2008 WL 4446714, at *2 (D.Ariz. Sept. 30, 2008). In Colorado Cross, the Tenth Circuit held that the “[pjlaintiff bears the initial burden of production to present evi dence that a suggested method of barrier removal is readily achievable” and that if plaintiff meets that burden, the burden" }, { "docid": "11007870", "title": "", "text": "the structure of the statute.\"). . Because Neff seeks only injunctive relief, it is curious why Neff elected to name ADQ rather than R & S Dairy Queens, the more logical defendant to an ADA suit over the accessibility of the San Antonio Stores. However, the answer may lie in §§ 302(b)(2)(A)(iv) and 301(9)(C) of the ADA, 42 U.S.C. §§ 12182(b)(2)(A)(iv), 12181(9)(C). Section 302(b)(2)(A)(iv) defines discrimination in public accommodations to include \"a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, ... where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Section 301(9)(C), in turn, defines \"readily achievable” as follows: The term \"readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include— (B) the overall financial resources of the covered entity.... 42 U.S.C. § 12181(9)(C). Consequently, the scope of the injunctive relief available to Neff if she proves a violation of the ADA will depend in part on the financial strength of the defendant against which she proceeds. Still, while our holding excluding ADQ from the scope of § 302 with respect to the San Antonio Stores may limit the actual relief available to Neff, it will not hurt her ability to compel R & S Dairy Queens to make \"readily available” structural changes to the San Antonio stores. . In Wheeler, the Tenth Circuit held that a general partner was not an \"employee” within the meaning of Title VII, the ADEA, and the Equal Pay Act. id. at 277 (\"For the reasons stated above, we hold that bona fide general partners are not employees under the Anti-Discrimination Acts.”). The only issue before the court in Bradley was whether the defendants had established a business justification defense for enforcing an allegedly discriminatory \"no beard” policy. One of the defendants was a franchisor, Domino’s Pizza, Inc., but the court did not address the basis for Domino’s liability under Title VII. However, the court’s recitation of the facts demonstrates that the allegedly discriminatory \"no beard”" }, { "docid": "15516377", "title": "", "text": "services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). In a private action under the ADA, a court may provide “any person who is being subjected to discrimination on the basis of disability in violation of’ the Act injunctive relief, requiring a defendant to make its facility readily accessible to and usable by individuals with disabilities. Id. § 12188(a)(2). Discrimination prohibited by the Act includes a private entity’s “failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Where removal is not readily achievable, the entity incurs liability if it fails to make those goods, services and facilities “available through alternative methods if such methods are readily achievable,” that is, “easily accom-plishable and able to be carried out without much difficulty or expense.” The Act sets forth accessibility guidelines, which identify the minimum technical requirements for ADA compliance for new construction and alterations to existing facilities. Failure to abide by the Guidelines in new construction evidences intentional discrimination against disabled persons. See Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.Supp.2d 1353, 1362 n. 5 (S.D.Fla.2001). The Act imposes a less rigorous standard of compliance on “existing facilities,” constructed before its enactment on January 26, 1993. Concorde, 158 F.Supp.2d at 1362. “The compromise Title III makes is to require only reasonable modifications and readily achievable barrier removals or alternative methods, when the disabled are subjected to de facto discrimination in places of public accommodation.” Concorde, 158 F.Supp.2d at 1362. The parties agree that because the Stadi- urn predates the ADA, its obligation to comply with the ADA is governed by the “readily achievable” standard. Plaintiffs’ prima facie case depends on Resnick’s ability to show the following: 1) that he is disabled; 2) that the Stadium is a place of public accommodation; and 3) that he was denied full and equal treatment because of his disability. See Tugg v. Towey, 864 F.Supp. 1201, 1205 (S.D.Fla.1994); see" }, { "docid": "13050537", "title": "", "text": "modifications relating to wheelchair seating at The Fox were “readily achievable” under Title III of the ADA. III.STANDARD OF REVIEW This court reviews the district court’s order granting summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.2004). IV.DISCUSSION A. Title III of the ADA The ADA is comprehensive legislation that addresses discrimination against disabled individuals. The ADA has three sections: Title I regulates discrimination in the workplace; Title II prohibits discrimination by public entities; and Title III prohibits discrimination by private entities in places of public accommodation. Title III applies to the present case and provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). Congress enacted the ADA on January 25, 1993. After this date, facilities have to meet exacting de sign and implementation standards to be in compliance with the ADA. The ADA imposes different requirements on the owners and operators of facilities that existed prior to its enactment date. For those facilities, the ADA states that discrimination includes a private entity’s “failure to remove architectural barriers ... where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Where removal is not “readily achievable,” failure of the entity to make goods, services and facilities “available through alternative methods if such methods are readily achievable,” may constitute discrimination under the ADA. 42 U.S.C. § 12182(b)(2)(A)(v). The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). Congress included in the ADA factors to be considered in evaluating whether removal of a barrier is “readily achievable.” These factors are (1) nature and cost of the action; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on" }, { "docid": "14003581", "title": "", "text": "v. Premier Cruises, Inc., 215 F.3d 1237, 1241 n. 6 (11th Cir.2000) (per curiam) (under plain language of the ADA, “those parts of a cruise ship which fall within the statutory enumeration of public accommodations are themselves public accommodations for the purposes of Title III,” and Department of Justice’s interpretation of Title III reaches the same conclusion). The decision of the district court dismissing the complaint with prejudice is vacated, and this case is remanded, for further proceedings consistent with this opinion. Costs to appellant. . Plaintiff Disabled Americans for Equal Access, Inc., voluntarily dismissed its complaint against Ferries on behalf of its members and is no longer a party to the action or the appeal. . 42 U.S.C. § 12182(b)(2)(A)(iv) prohibits the \"failure to remove architectural barriers ... in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals ..., where such removal is readily achievable.” 42 U.S.C. § 12181(9) defines \"readily achievable” as \"easily ac-complishable and able to be carried out without much difficulty or expense.” If removal of barriers is not \"readily achievable,” 42 U.S.C. § 12182(b)(2)(A)(v) requires delivery of goods and services by alternate means. See also 28 C.F.R. § 36.305. . The record contains no explanation of the reason for this unusual motion practice. . While the district court explicitly mentioned regulations governing only \"new construction” and \"barrier removal,” we note that 28 C.F.R. Pt. 36, Subpart D, which sets forth regulations governing new construction by public accommodations, also includes regulations for the \"alteration” of public accommodations. .28 C.F.R. § 36.304 \"requires the removal of architectural barriers ... in existing facilities, where such removal is readily achievable.” 28 C.F.R. Pt. 36, App. B at 700. By contrast, the regulations contained in 28 C.F.R. Pt. 36, Subpart D, which govern new construction and alterations, \"do[ ] not require alterations; [they] simply provide[ ] that when alterations are undertaken, they must be made in a manner that provides access.” Id. at 717. Pursuant to 28 C.F.R. § 36.402(b)(1), \"[alterations include, but are not limited to, remodeling, renovation, rehabilitation," } ]

[ { "docid": "13933905", "title": "", "text": "kind of a stiff backing either inside or outside the bag, and the resulting combination used to display the contents, whether it was a silk handkerchief, gum, noodles, or sugar. True, plaintiffs do claim that their package has a feature in the combination that it didn’t have before and that is that you can crush the nuts while still in the container, by the use of a rolling pin, without breaking the package. But this does not make it patentable and it isn’t part of any claim in the patent. In any event such a result would depend somewhat upon the ■strength of material used in the bag itself and how filled it was. So far as we know if you attempted to crush the nuts in defendants’ bag as demonstrated with plaintiffs’, the result to bag, nuts, and the kitchen might be disastrous. There is no evidence that the bag of defendants would accomplish the same thing as claimed for plaintiffs’ packaging. 2. 'As To Unfair Competition. As to the second question it would appear at first blush that plaintiffs’ position has more merit and if this case was before us under the old decisions we would probably be obliged to issue an injunction on the basis of unfair competition. This is particularly true of N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 2 Cir., 1896, 77 F. 869, known far and wide as the Gold Dust Twin case. We believe that the package devised by defendants here is much more deceiving to the public than the package employed by Bell in the Gold Dust Twin case. In fact this seems to be true of most decisions until comparatively recent ones. Under the present trend, however, the courts have been very careful not to stifle competition unless there exist certain essential facts. Herein there is no design patent even claimed and under the present decisions as we interpret them if the plaintiffs are to prove unfair competition they must show that the nonfunctional features of their bag have a secondary meaning to the public. There must be" } ]

[ { "docid": "11245507", "title": "", "text": "PER CURIAM. In this civil action, appellants filed a double-barreled complaint: It was charged that the appellees were infringing Weeks’ patent, No. 2,124,324, relating to a food package for nut meats and the like, one of the appellants being owner of the alleged invention and the other sole licensee thereof. An injunction against appellees was sought to restrain them from making, using, or selling packages embodying the alleged patented invention, and from selling goods in packages so similar to those of appellants as to be likely to cause confusion to the damage of appellants in the competitive trade. After trial, at which numerous witnesses testified and numerous exhibits were introduced, the district judge held the pertinent claims of the patent in suit to be invalid, and the charge of unfair competition to be not sustained by the evidence for the reasons stated in his opinion. In holding the typical claims of the patent in suit to be invalid, he applied conscientiously the doctrine of the Supreme Court in Great Atlantic & Pacific Tea Company v. Super Market Equipment Corporation, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162, in which case he had been the trial judge. He held that no invention inheres in the claims of the Weeks’ patent. The claims in suit define the aggregation as a package comprising a soft, limp cellophane bag, filled with nuts and sealed, and having flat ends or tails, and an outer paper wrapper or backing surrounding and protecting the cellophane bag. In the prior art, the bag described in Weeks’ patent was plainly anticipated by Zwoyer No. 1,986,422. As to the wrapper, it was anticipated in the prior art by several patents, including Krohn 1,028,888, Childs 1,249,328, and Emrich 1,491,088. In the prior art, the Weeks’ patent was anticipated, in respect of the protection and stiffening of wrappers for numerous articles for display, by a number of patents, among which may be listed the three Crupain patents, Nos. 1,436,238, 1,446,836, and 1,452,363; Em-rich No. 1,491,088; Krohn No. 1,028,-888; and Childs No. 1,249,328. All the patentee did was to place together segments" }, { "docid": "14845827", "title": "", "text": "for the goods [the carpeting] primarily adopted for purposes of identification and individuality.” Thus, it argues, the folders should be protected. The district court followed El Dorado’s reasoning. It noted that the facts were undisputed that Fabrica wanted to protect its carpet sample folder because it is a “better sales tool” and contributes to the commercial success of the product. Based on that uncontroverted evidence, it vacated the jury verdict in favor of Fabrica and entered judgment n.o.v. for El Dorado. The district court erred in setting aside the jury verdict. Product packaging and trade dress may, it is true, be functional. See Price Food Co. v. Good Foods, Inc., 400 F.2d 662 (6th Cir.1968). However, this court has specifically limited application of the Pagliero functionality test to product features and has refused to apply the test to cases involving trade dress and packaging. In Audio Fidelity, Inc. v. High Fidelity Recordings, Inc., 283 F.2d 551 (1960), for example, we considered an unfair competition challenge to a record jacket for a recording of railroad sounds. We distinguished Pagliero in ruling that the copied design of the record jacket constituted unfair competition, noting that Pagliero had dealt with the copying of a product, whereas the record jacket in issue was the package for the product. We quoted with approval an opinion Justice Stewart authored while sitting on the Sixth Circuit: The difference in the protection against imitation which will be accorded to an article of commerce on the one hand, and to a package in which the article is marketed on the other, was long ago noted .... [T]he law which permits one to market an identical copy of his competitor’s product does not give him freedom to imitate the appearance of the package in which the article is sold .... [T]he public policy which permits the imitation of an article of commerce is without relevance to the dress in which the article is marketed. 283 F.2d at 557 (quoting Tas-T-Nut Co. v. Variety Nut & Date Co., 245 F.2d 3, 6-7 (6th Cir.1957)). In the instant case, El Dorado argues" }, { "docid": "15748097", "title": "", "text": "California Code §§ 17200-17208. It is well established, though, that an action for unfair competition cannot be based upon a functional design. J.T. McCarthy, Trademarks and Unfair Competition § 7:26 (2d ed. 1984). There is no reason to think that the California courts would apply a different principle in interpreting their statute. Power Controls argues that it is entitled to a presumption of nonfunctionality of its design for purposes of its unfair competition claims by virtue of its design patent, citing In re Morton-Norwich Products, Inc., 671 F.2d 1332, 1342 n. 3, 213 USPQ 9, 17 n. 3 (C.C.P.A.1982). Morton, however, does not sustain the contention. Under Ninth Circuit law by virtue of Cable Electric, supra, Power Controls cannot rely upon such a presumption of validity to show nonfunctionality. Since the affidavit of Mr. Wickersham made a sufficient showing of functionality to overcome the ’580 patent’s presumption of validity, a fortiori it was sufficient to establish functionality without regard to the presumption. In short, Power Controls has not shown a sufficient likelihood of success on the merits of its federal and state unfair competition claims to support the preliminary injunction covering those claims. See Sardi’s Restaurant Corp, v. Sardie, 755 F.2d 719, 722-23, 226 USPQ 23, 25 (9th Cir.1985). The provisions of the preliminary injunction dealing with those claims also must be vacated. V The district court enjoined Hybrinetics from “[displaying, offering for sale, or selling Hybrinetics products by distributing or displaying any advertising material that shows the [registered trademark] DynaPak packaging of Power Controls.” It is unclear whether Hybrinetics challenges that provision or, if it does, upon what ground. At oral argument Hybrinet-ics conceded that it had used Power Controls’ packages in its sales literature. Such conduct was improper, and we have no basis for disturbing the preliminary injunction against it. VI Since in this appeal Hybrinetics has not argued that the provisions of the preliminary injunction that enjoined it from (1) using a particular mold to make clam shell packaging and (2) destroying or disposing of packaging substantially similar to or copied from Power Controls’ Dynapak packaging are" }, { "docid": "23238705", "title": "", "text": "SWAN, Circuit Judge. On June 25, 1957 Harold F. Ritchie, Inc., a New Jersey corporation and owner of the registered trademark “Brylcreem,” brought suit against Chesebrough-Pond’s, Inc., a New York corporation, charging trademark infringement and unfair competition by appellee’s use of the trademark “Valcream.” The complaint sought injunctive relief pursuant to 15 U.S.C.A. § 1116, and an accounting of profits, treble damages and costs pursuant to 15 U.S.C.A. § 1117. Federal jurisdiction was based on the Lanham Act, 15 U.S.C.A. §§ 1114, 1121, with pendent jurisdiction of the claim of unfair competition, 28 U.S.C.A. § 1338(b), and also on diverse citizenship, 28 U.S.C.A. § 1332. The trademarks, Brylcreem and Valcream, were employed to designate cream hairdressing for men which is marketed in collapsible metal tubes packaged in paperboard cartons. The case was tried before Chief Judge Ryan without a jury. Pursuant to his opinion of September 14, 1959, reported in 176 F.Supp. 429, judgment was entered dismissing appellant’s action. The court found no such similarity between “Val-cream” and “Brylcreem” as to cause likelihood of confusion to purchasers, and concluded that appellant had not sustained the burden of proving either trademark infringement or unfair competition. Timely notice of appeal was duly filed. The appeal asserts that the trial court erred (1) in failing to give recognition to the legal principles applicable to a second comer in the field of competition, (2) in failing to find as a fact that the appellee intentionally imitated plaintiff’s trademark, (3) in the treatment accorded the evidence of actual confusion, and (4) in dismissing the claim of unfair competition. By way of introduction to its argument appellant contends that this court is in as good a position as the trial judge to determine likelihood of confusion. This same contention was advanced in our recent decision in J. R. Wood & Sons v. Reese Jewelry Corp., 2 Cir., 1960, 278 F.2d 157, 158. There a finding of infringement was reversed, this court saying: “The decision as to infringement must, of necessity, be based primarily upon a comparison of the marks. In the absence of other determinative evidence," }, { "docid": "11245508", "title": "", "text": "Super Market Equipment Corporation, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162, in which case he had been the trial judge. He held that no invention inheres in the claims of the Weeks’ patent. The claims in suit define the aggregation as a package comprising a soft, limp cellophane bag, filled with nuts and sealed, and having flat ends or tails, and an outer paper wrapper or backing surrounding and protecting the cellophane bag. In the prior art, the bag described in Weeks’ patent was plainly anticipated by Zwoyer No. 1,986,422. As to the wrapper, it was anticipated in the prior art by several patents, including Krohn 1,028,888, Childs 1,249,328, and Emrich 1,491,088. In the prior art, the Weeks’ patent was anticipated, in respect of the protection and stiffening of wrappers for numerous articles for display, by a number of patents, among which may be listed the three Crupain patents, Nos. 1,436,238, 1,446,836, and 1,452,363; Em-rich No. 1,491,088; Krohn No. 1,028,-888; and Childs No. 1,249,328. All the patentee did was to place together segments of the prior art, which he claims to constitute invention. We are not in accord with his contention. All, at most, the patentee did was to make an advance step in combination of known elements, not rising to the dignity of invention. This case falls plainly within the ambit of the Great Atlantic & Pacific Tea Company case, supra. In our opinion, the adjudication by the able and experienced district judge that appellants had failed to sustain by evidence the charge of unfair competition leveled against appellees was not clearly erroneous but was supported by substantial evidence. We think the record fails to show that the device of appellants had acquired a “secondary meaning,” or that appellees attempted to “palm off” their goods as those of appellants, which sustains the conclusion of the district judge that appellants failed to establish their charge of unfair competition. Accordingly, the judgment is affirmed." }, { "docid": "20343569", "title": "", "text": "competition already exists, this factor, too, militates in favor of a finding of the likelihood of confusion. 2. Trade Dress In addition to the complaints involving product designators, Gem also claims that confusion results from Westward’s use of certain elements of trade dress. First, Gem argues that Westward’s use of the trademark “Keyline” is an imitation of Gem’s trademark, “Gemline,” and is likely to cause confusion. Gem also claims that Westward’s use of a blue, downward-pointing arrowlike design as a logo can be confused with Gem’s use of a red chevron. Finally, Gem argues that Westward’s placement of its labels and the information thereon, along with the shape of Westward’s boxes, is an imitation of the packaging used by Gem, and is likely to lead to confusion. With respect to claims for trade dress infringement, the Sixth Circuit has stated: Stimulation amounting to unfair competition does not reside in identity of single features of dress or markings nor in indistinguishability when the articles are set side by side, but is to be tested by the general impression made by the offend ing article upon the eye of the ordinary purchaser or user. If the general impression which it makes when seen alone is such as is likely to lead the ordinary purchaser to believe it to be the original article, there is an unlawful simulation. Chesebrough Mfg. Co. v. Old Gold Chemical Co., Inc., supra, at 384. This Circuit has also held that an infringer cannot avoid liability by merely affixing his own name to an otherwise copied label. Tas-T-Nut Co. v. Variety Nut & Date Co., 245 F.2d 3 (6th Cir.1957). In light of this case law, analysis must now turn to applying the eight Frisch’s Restaurants factors to the trade dress issue. In the case of the bulk of these factors there is no need to go through detailed analysis since the identical considerations which were discussed in the analysis of alphanumeric designators are present here. The only factors that need be analyzed again with reference to trade dress are strength of the mark and similarity of the" }, { "docid": "6521468", "title": "", "text": "PICARD, District Judge. This is an unfair competition case in which the important facts are not in dispute. Findings of Fact Plaintiff has been in the business of producing and selling cooking nuts for over twenty-five years under the style name of “Tas-T-Nut”. In 1950 Weeks, owner of “Tas-T-Nut” and plaintiff brought action to prevent defendant from using their particular container which was a dispenser displaying nuts in a package about 6 inches in length and 3 inches in width that had. a cellophane “window” about 4 inches by 2 inches. The name “Tas-T-Nut”, the price and the color — red and blue — made it a distinctive package and not only did plaintiffs desire their patent rights protected but they also claimed unfair competition. In that case this court (Weeks v. Variety Nut & Date Co., D.C.1952, 103 F.Supp. 528), found that plaintiffs’ patent was invalid for lack of invention and that proof of unfair competition was insufficient. The case was appealed; this court was sustained, 6 Cir., 1953, 208 F.2d 414, and certiorari denied. Shortly thereafter plaintiff as a corporation changed its style of package but that container was also closely imitated by defendant. At this point, in 1953, both strategy and tactics of the parties changed. Plaintiff’s package up to 1953 was red and blue while defendant’s color combination was red and yellow, when for some reason of its own plaintiff changed the color of its package to be exactly the same as defendant’s — a col- or defendant had then been using for about three years. So this present action involves not only plaintiff’s new package — the colors of which are now red and yellow — but includes plaintiff’s other packages, red and blue and yellow and ■green. In this action plaintiff claims that its packages — color combination and all — have a secondary meaning to housewives who purchase cooking nuts; and that not only does defendant’s package lend itself to confusing the buying public but it lends itself easily as being the exact article produced and distributed by plaintiff. As for “palming off”" }, { "docid": "16474061", "title": "", "text": "reach the Lanham Act claim for injunc-tive relief since it had awarded such relief on the basis of unfair competition. The court declined to hold defendant Donald Merry personally liable for the damages on the basis of the alter ego doctrine, finding that he had not blatantly disregarded the corporate form in conducting the business. Plaintiffs appeal, contending that the district court erred in failing to hold Donald Merry personally liable for the damages and in failing to award punitive damages. MVC cross appeals, contending that the district court erred in finding that it had committed an actionable wrong and in enjoining its operations. We conclude that the district court erred in declining to hold defendant Merry personally liable for the damages. In all other respects, the judgment of the district court is affirmed. I. The instant case involves sound recordings fixed prior to February 15, 1972, the effective date of Public Law 92-140, § 3, 85 Stat. 391, which accorded limited copyright protection to the manufacturers of musical recordings “fixed, published, and copyrighted” after that date. There were no Michigan statutes governing the alleged wrongful acts of MVC at the time this cause of action arose. Subsequent to the filing of this action, Michigan enacted Mich. Comp.L.Ann. § 752.781-85 (Supp.1977) which makes record piracy a crime. Most of the states have enacted legislation making record piracy a crime. In the absence of a statute, any protectible property rights plaintiffs possess must derive from common law. Although no Michigan decisions address the issue at bar, Michigan courts follow the general law of unfair competition. See Tas-T-Nut Co. v. Variety Nut & Date Co., 245 F.2d 3, 8 (6th Cir. 1957); Marion Laboratories, Inc. v. Michigan Pharmacal Corp., 338 F.Supp. 762, 767 (E.D.Mich.1972), aff’d mem., 473 F.2d 910 (6th Cir. 1973). As a court sitting in an action based upon diversity of citizenship, the district court was required to determine whether the Supreme Court of Michigan would find MVC’s conduct actionable on the basis of common law unfair competition. Ann Arbor Trust Co. v. North American Co., 527 F.2d 526 (6th" }, { "docid": "14845828", "title": "", "text": "We distinguished Pagliero in ruling that the copied design of the record jacket constituted unfair competition, noting that Pagliero had dealt with the copying of a product, whereas the record jacket in issue was the package for the product. We quoted with approval an opinion Justice Stewart authored while sitting on the Sixth Circuit: The difference in the protection against imitation which will be accorded to an article of commerce on the one hand, and to a package in which the article is marketed on the other, was long ago noted .... [T]he law which permits one to market an identical copy of his competitor’s product does not give him freedom to imitate the appearance of the package in which the article is sold .... [T]he public policy which permits the imitation of an article of commerce is without relevance to the dress in which the article is marketed. 283 F.2d at 557 (quoting Tas-T-Nut Co. v. Variety Nut & Date Co., 245 F.2d 3, 6-7 (6th Cir.1957)). In the instant case, El Dorado argues that the carpet sample folders are not really trade dress, but constitute products in and of themselves. We disagree. The display folders are simply advertising and display materials. Consumers have no interest in the folders themselves; they merely aid consumers in selecting the actual product—the carpeting. The Audio Fidelity limitation on the Pagliero functionality test is applicable. Another decision of this court recently clarified Pagliero and further demonstrates the district court’s error in granting judgment n.o.v. Vuitton et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769 (9th Cir.1981), involved a trademark and unfair competition claim pertaining to a distinctive design of intertwined “LV” initials that decorates Louis Vuitton luggage and handbags. The district court granted summary judgment in favor of the defendants after finding that the design sought to be protected “constitutes the primary decoration of those goods and is a factor in their consumer appeal and saleability and as such is a functional element of the goods.” Id. at 773. We reversed, stating: We disagree with the district court insofar as it" }, { "docid": "9449909", "title": "", "text": "In all inter partes proceedings equitable principles of laches, estoppel, and acquiescence, where applicable, may be considered and applied. Appellee also cites two cases in support of its request: Danskin, Inc. v. Dan River, Inc., 498 F.2d 1386, 182 USPQ 370 (Cust. & Pat.App.1974), and Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 177 USPQ 609 (6th Cir.1973). Danskin supports appellee’s position. There the CCPA affirmed the action of the Trademark Trial and Appeal Board in a trademark opposition proceeding in granting a motion for summary judgment on the ground that the opposer was es-topped by a settlement agreement between the parties. Questions were raised about the meaning of the agreement and the board proceeded to construe and apply it. The court approved. That panel of the board apparently had no doubts about being a proper tribunal to construe and apply an agreement. The Beer Nuts case, in our view, has no bearing on the ground the board asserted here because it involved, the action of a United States District Court in giving effect to an agreement, a court of general jurisdiction. There are, however, other cases, not cited, which we believe also support appellee’s position. In Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 175 USPQ 417 (Cust. & Pat.App.1972), the board granted a motion to strike portions of pleadings in an opposition and two cancellation proceedings because appellant had relied on its copyright on the “Raggedy Ann” doll. The board opined that it “had no jurisdiction to determine the validity of or infringement of a copyright.” The CCPA modified the board’s action, agreeing that it should strike pleadings insofar as they charged copyright infringement and unfair competition, since these issues were not within the board’s jurisdiction to decide, but reversing insofar as the copyright was related to the charges of likelihood of confusion, mistake, or deception from appellee’s use of a representation of the copyrighted doll as a trademark by appellee. The court said: However, we do not wish to be read as holding that the board is * * * precluded from passing" }, { "docid": "2883340", "title": "", "text": "those colors used by the appellant, introducing green and yellow and blue and yellow packages, and arranging the labeling in such a way as strikingly to resemble the overall appearance of the appellant’s packages. Upon the appellee’s refusal to discontinue the use of these packages, the appellant filed the present suit. Shortly before the trial the appellee introduced additional packages which had a diamond-shaped design instead of printed words along the sides, but which otherwise were identical to its 1954 designs, and use of these packages was also sought to be enjoined in the present action. The district court found that the appellee’s packages “have much in common” with those of the appellant. The court further found “that the careless purchaser could easily be confused. * * * One could have bought Tas-T-Nuts one week and become so familiar with the package that the next week without specifically looking for the name but knowing he liked nuts in a certain shaped package and a certain color container, purchase Pic-A-Nuts believing them to be the same as he had purchased before.” The court also found that the appellee “is deliberately trying to take advantage of the great amount of advertising done by, the good reputation earned, and the style of package that has been gotten out by [appellant].” Moreover, the court recognized that there was evidence that customers actually had confused the products, and that there had been an actual palming off by retailers of the appellee’s product as that of the appellant. The court concluded, however, that because the appellee placed its own trade name in a conspicuous position on its packages, it was not guilty of unfair competition. This court’s decision in West Point Manufacturing Company v. Detroit Stamping Company, 6 Cir., 1955, 222 F.2d 581, and the Supreme Court’s earlier decision in Singer Manufacturing Company v. June Manufacturing Company, 1896, 163 U.S. 169, 16 S.Ct. 1002, 41 L.Ed. 118 were thought to compel this conclusion. Those cases express the now-settled law that, when a patent covering an article of manufacture has expired, the original manufacturer cannot prevent another" }, { "docid": "2883339", "title": "", "text": "substantially identical in physical construction to the appellant’s. Because of this, the appellant brought an action against the appellee in that year for relief against patent infringement and unfair competition. The district court held that the claims of the patent in suit were invalid, and that the proof was insufficient to establish unfair competition. Weeks v. Variety Nut & Date Co., D.C.E.D.Mich.1952, 103 F. Supp. 528. This decision was affirmed on appeal. Weeks v. Variety Nut & Date Co., 6 Cir., 1953, 208 F.2d 414. Although in physical construction the packages involved in that litigation were substantially identical, appellant’s and appellee’s packages were dissimilar in appearance because of differing color combinations, and differing arrangement and positioning of labeling. In 1953 the appellant embarked upon a plan of color coding its packages for different varieties of nut meats, the three new color combinations being red and yellow, green and yellow, and blue and yellow. In 1954 the appellee redesigned the appearance of its packages, changing its previous red and yellow package to the same shades of those colors used by the appellant, introducing green and yellow and blue and yellow packages, and arranging the labeling in such a way as strikingly to resemble the overall appearance of the appellant’s packages. Upon the appellee’s refusal to discontinue the use of these packages, the appellant filed the present suit. Shortly before the trial the appellee introduced additional packages which had a diamond-shaped design instead of printed words along the sides, but which otherwise were identical to its 1954 designs, and use of these packages was also sought to be enjoined in the present action. The district court found that the appellee’s packages “have much in common” with those of the appellant. The court further found “that the careless purchaser could easily be confused. * * * One could have bought Tas-T-Nuts one week and become so familiar with the package that the next week without specifically looking for the name but knowing he liked nuts in a certain shaped package and a certain color container, purchase Pic-A-Nuts believing them to be the same" }, { "docid": "2883338", "title": "", "text": "STEWART, Circuit Judge. The appellant brought this suit in the district court asking for an injunction and money damages. The wrong complained of was the appellee’s unfair competition. No trademark infringement was alleged, and federal jurisdiction was grounded exclusively upon diversity of citizenship. Deciding that no unfair competition had been proved, the district court dismissed the complaint. 1956, 136 F.Supp. 775. For almost thirty years the appellant has produced packaged nut meats for sale at retail throughout most of the United States, including the state of Michigan. The product is sold under the trade name “Tas-T-Nut,” and since 1936 has been marketed in a package consisting of a moisture-proof cellophane bag and a surrounding outer wrapper with an open face, which permits the nut meats to be seen through the cellophane. The physical construction of the package was covered by a patent which expired in July, 1955. The appellee also produces packaged nut meats for retail sale in Michigan, under the trade name “Pic-A-Nut.” In 1950 it began to market its product in a package substantially identical in physical construction to the appellant’s. Because of this, the appellant brought an action against the appellee in that year for relief against patent infringement and unfair competition. The district court held that the claims of the patent in suit were invalid, and that the proof was insufficient to establish unfair competition. Weeks v. Variety Nut & Date Co., D.C.E.D.Mich.1952, 103 F. Supp. 528. This decision was affirmed on appeal. Weeks v. Variety Nut & Date Co., 6 Cir., 1953, 208 F.2d 414. Although in physical construction the packages involved in that litigation were substantially identical, appellant’s and appellee’s packages were dissimilar in appearance because of differing color combinations, and differing arrangement and positioning of labeling. In 1953 the appellant embarked upon a plan of color coding its packages for different varieties of nut meats, the three new color combinations being red and yellow, green and yellow, and blue and yellow. In 1954 the appellee redesigned the appearance of its packages, changing its previous red and yellow package to the same shades of" }, { "docid": "17394852", "title": "", "text": "943, 102 S.Ct. 2008, 72 L.Ed.2d 465 (1982). Applying the law as enunciated in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), the district court in the present case held that Stevenson had a full and fair opportunity to litigate the validity of his patent in the prior unsuccessful suit against Grentec, Inc., and that therefore he was collaterally estopped from asserting the validity of his patent against the defendantappellee, Sears, Roebuck & Company (Sears). The court also held that Sears was entitled to attorney fees in the amount of $5,000. For the reasons that follow, we affirm in part and reverse in part. I. Background. In 1977, appellant, Richard L. Stevenson (Stevenson) filed an amended complaint with the International Trade Commission (ITC) pursuant to section 337 of the Tariff Act of 1930 (codified as amended at 19 U.S.C. § 1337 (1976 & Supp. V 1981)), contending that unfair methods of competition existed in the importation and distribution of certain skateboards alleged to infringe claims 1, 2, 7, and 8 of U.S. Patent No. 3,565,454 to Stevenson. The subject device of the claims is commonly known as a kick-tail skateboard. The ITC held that there was no violation of section 337 of the Act. On appeal, the Court of Customs and Patent Appeals (CCPA) reversed. After reviewing the evidence submitted by Stevenson and the various defendants-appellees (certain foreign corporations), the CCPA found that “there is no evidence of record that would have suggested to one having ordinary skill in the art at the time of appellant’s invention that the up-swept tail of the rocker board would function to provide improved maneuverability.” Stevenson v. International Trade Commission, 612 F.2d at 554, 67 CCPA at-, 204 USPQ at 283. Therefore, on the evidence of record, the CCPA held that the appellees had “failed to carry their burden of persuasion in asserting the invalidity of the subject claims of the Stevenson patent.” Id. at 555, 67 CCPA at-, 204 USPQ at 284. It is important to note that this decision did not hold" }, { "docid": "2825190", "title": "", "text": "Laboratories Corp. v. Cohen, 721 F.2d 514, 523 (5th Cir.1983) (courts have uniformly rejected sanctioning exclusive rights to product color); Volkswagenwerk Aktiengesellschaft v. Rickard, 492 F.2d 474, 480, 181 USPQ 611, 615 (5th Cir.1974) (automobile manufacturer has no rights in color blue per se); Tas-T-Nut Co. v. Variety Nut & Date Co., 245 F.2d 3, 6, 113 USPQ 493, 495 (6th Cir.1957) (clear that one could acquire no proprietary right in the color or colors used on its packages, as such); Life Savers Corp. v. Curtiss Candy Co., 182 F.2d 4, 9, 85 USPQ 440, 443 (7th Cir.1950) (no exclusive use of multi-colored stripes on packaging; color cannot be monopolized to distinguish a product); Deere & Co. v. Farmhand, Inc., 560 F.Supp. 85 (S.D.Iowa 1982), aff’d, 721 F.2d 253 (8th Cir.1983); Mershon Co. v. Pachmayr, 220 F.2d 879, 883, 105 USPQ 4, 7 (9th Cir.) (white line on green recoil-pad; color alone cannot be protected as a mark), cert. denied, 350 U.S. 885, 76 S.Ct. 139, 100 L.Ed. 780 (1955). . Moreover, there is no point in granting a registration which will not be recognized by the regional circuits (nor, for that matter, by this circuit which must follow the law of a regional circuit on questions of trademark infringement)." }, { "docid": "23238719", "title": "", "text": "of attainment. Moreover, it is difficult to understand on what basis the court found that customers who were confused were careless or inattentive. None of such customers was produced as a witness at the trial. While a side by side comparison of the trademarks, tubes and cartons would enable an attentive observer to differentiate them, this is not the test to be applied. It is the general overall impression which counts; we find no body of opinion in this circuit or elsewhere, to the contrary. Since we find infringement of the Bryl-creem trademark, it is unnecessary to consider the allegation of unfair competition, which is governed essentially by the same principles already discussed. For the foregoing reasons we believe the trial court erred in dismissing the action. Accordingly, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. . Appellant’s trademark was registered on November 3, 1942, as No. 398,474. Appellant also owns a New York State Registration of the trademark “Brylcreem.” Appellee applied to the Patent Office for registration of the trademark “Val-cream.” Appellant opposed the registration and, after correspondence between the parties, brought the present suit, in consequence of which the Patent Office proceeding has not been decided. . Appellee advances the extraordinary contention, unsupported by any citation of authority, that because appellant, in January 1959, changed somewhat the color arrangement and appearance of the “Brylcreem” tubes and cartons it was using when the suit was commenced in June 1957, appellant thereby “became the late or second comer” and “abandoned its claim for unfair competition based on alleged similarity of the parties’ cartons and tubes when this action started.” Appellant’s answer to this contention is obviously correct, namely, that the only effect, if any, which appellant’s voluntary change in the appearance of its packaging can have, relates to the damages recoverable after such change, and has no bearing on the question of trademark infringement or unfair competition prior to such change. . 15 U.S.C.A. § 1114(1) imposes liability for use of a colorable imitation of any registered mark" }, { "docid": "6521479", "title": "", "text": "to define unfair competition and then try to determine whether these yardsticks had been met. Those rules were: First, had defendant used a trademark at a conspicuous place on its toggle clamp even though it had copied plaintiff’s product in all particulars? The Court of Appeals found that the Detroit Stamping Company did use its own name and trade-mark in a conspicuous place on its toggle clamp, a fact that weighed heavily with the .court and then it added the second possibility in these words at page 596 of 222 F.2d— “Since the trade-marks and advertisements clearly disclosed that appellant was the maker of its clamps, no issue of ‘secondary meaning’ arises in this case so that the question whether appellant copied the non-functional features of appellee’s clamp is here irrelevant.” This would indicate that where there has been an open and conspicuous display of defendant’s trade-mark clearly disclosing that defendant was the manufacturer of the package as here there can be no instances of unfair competition based on plaintiff’s product having attained a secondary meaning during the seventeen years that it had been protected by its patent. And even if the issue of “secondary meaning” were the real question here we are obliged to admit that the evidence on that point presented by plaintiff is not overwhelming. We have mentioned the fact that color plays an important part in identifying this package. It is not the cellophane window in front. Many foods have that feature — coffee, sugar, vermicelli, dates and others. Plaintiff’s package, while it had utility value, is not so unique that without combining all its features including color you have a package that directs your attention to where you will find some cooking nuts. There was no real substantial proof that plaintiff’s package had attained a secondary meaning at any time either before 1953 or after, chiefly for the following reasons: 1. It was not shown that consumers eared who manufactured the nuts that plaintiff’s package contained; 2. It was not shown that the appearance of plaintiff’s package signified to consumers that it had its origin" }, { "docid": "20558538", "title": "", "text": "Sixteen”, from imitation by the defendant. The court denied relief because actual deception was not shown, but also stated . . . proof of actual deception is not necessary to establish unfair competition, it being sufficient if it appears that deception will be the natural and probable consequence of defendants’ acts. Weisman v. Kuschewski, 243 Mich. 223 [219 N.W. 937] In Tas-T-Nut Company v. Variety Nut & Date Company, 245 F.2d 3 (6th Cir. 1957), the court found that the plaintiff was entitled to protection against the defendant’s use of a package closely simulating the design of plaintiff’s package in color and printing format. In that case, the court held that Michigan law was controlling. There were no Michigan decisions, however, on the issue presented to the court. Nevertheless, the court found that the “law of Michigan is consistent with the general law of unfair competition as reflected in the authorities cited”. Traditional theories of unfair competition were applied to the case and relief was granted. As the court in K-S-H Plastics, Inc. v. Carolite, Inc., 408 F.2d 54 (9th Cir. 1969) noted, “state and federal courts frequently borrow decisions from one another and from the entire body of law on unfair competition”. See also, Hygienic Specialties Co. v. H. G. Salzman, Inc., 302 F.2d 614 (2nd Cir. 1962). Other than Carbonated Beverages and Tas-T-Nut, supra, there have been no Michigan cases dealing with labels or trade dress. Nevertheless, it is clear that Michigan follows the general principles of unfair competition. See Clipper Belt Lacer Company v. Detroit Belt Lacer Co., 223 Mich. 399, 407, 194 N.W. 125 (1923). In addition, the Michigan statutes do express the state’s concern with the la beling and packaging of drugs. See M. S.A. § 14.781 and M.S.A. § 14.784, M.C. L.A. §§ 335.1, 335.4. The State of Michigan has expressed, through its decisional and statutory law, that packaging must not mislead the customer. Thus, this court finds that plaintiff has alleged a claim that remains cognizable under existing Michigan law of unfair competition despite the Sears and Compco decisions. The plaintiff began manufacturing" }, { "docid": "9449908", "title": "", "text": "to cancel for failure to state a claim on which relief can be granted, we vacate and remand the case for consideration in light of the principles discussed herein. II. Estoppel and the Board’s Refusal to Pass On It Appellee’s second numbered ground for moving to dismiss was that appellant was estopped to challenge the registration sought to be cancelled by a settlement agreement entered into by the parties hereto in terminating Opposition No. 61,424. Appellant counters that it is not bound by the agreement because of appellee’s “unclean hands” in entering into it. The board declined to consider the issue of estoppel because, it said * * * the Board is not the proper tribunal for resolution of any arguments relating to possible breach of agreement. No authority was cited by the board. Appellee’s brief before us requests that, in the event we reverse the board, we direct that the board consider the agreement in any future proceeding, citing 15 U.S.C. § 1069, section 19 of the Trademark Act, which provides in pertinent part: In all inter partes proceedings equitable principles of laches, estoppel, and acquiescence, where applicable, may be considered and applied. Appellee also cites two cases in support of its request: Danskin, Inc. v. Dan River, Inc., 498 F.2d 1386, 182 USPQ 370 (Cust. & Pat.App.1974), and Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 177 USPQ 609 (6th Cir.1973). Danskin supports appellee’s position. There the CCPA affirmed the action of the Trademark Trial and Appeal Board in a trademark opposition proceeding in granting a motion for summary judgment on the ground that the opposer was es-topped by a settlement agreement between the parties. Questions were raised about the meaning of the agreement and the board proceeded to construe and apply it. The court approved. That panel of the board apparently had no doubts about being a proper tribunal to construe and apply an agreement. The Beer Nuts case, in our view, has no bearing on the ground the board asserted here because it involved, the action of a United States District Court in giving" }, { "docid": "23238720", "title": "", "text": "the Patent Office for registration of the trademark “Val-cream.” Appellant opposed the registration and, after correspondence between the parties, brought the present suit, in consequence of which the Patent Office proceeding has not been decided. . Appellee advances the extraordinary contention, unsupported by any citation of authority, that because appellant, in January 1959, changed somewhat the color arrangement and appearance of the “Brylcreem” tubes and cartons it was using when the suit was commenced in June 1957, appellant thereby “became the late or second comer” and “abandoned its claim for unfair competition based on alleged similarity of the parties’ cartons and tubes when this action started.” Appellant’s answer to this contention is obviously correct, namely, that the only effect, if any, which appellant’s voluntary change in the appearance of its packaging can have, relates to the damages recoverable after such change, and has no bearing on the question of trademark infringement or unfair competition prior to such change. . 15 U.S.C.A. § 1114(1) imposes liability for use of a colorable imitation of any registered mark if such use “is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods * * See J. R. Wood & Sons, Inc. v. Reese Jewelry Corp., 2 Cir., 1960, 278 F.2d 157; Florence Mfg. Co. v. J. C. Dowd & Co., 2 Cir., 178 F. 73, 75; American Chicle Co. v. Topps Chewing Gum, Inc., 2 Cir., 208 F.2d 560, 563; Q-Tips, Inc. v. Johnson & Johnson, 3 Cir., 206 F.2d 144, 147; Northam Warren Corp. v. Universal Cosmetic Co., 7 Cir., 18 F.2d 774, 775. . Brylcreem had not acquired such a generic meaning in the public eye as to necessitate imitation of its name by a newcomer in the field. This is evidenced by the success of other products in the field, e.g., Wildroot, Top Brass, Crew Cut’ and Command. . Quoted from Q-Tips, Inc. v. Johnson & Johnson, 3 Cir., 206 F.2d 114, 147 (“Q-Tips” held infringed by “Cotton Tips”). See also G. D. Searle & Co. v. Chas. Pfizer & Co.," } ]

[ { "docid": "12683891", "title": "", "text": "made any additional representation as to the length of his employment, and BRWs employee handbook unambiguously stated that at-will principles would govern issues of termination. Friedman’s failure to protest the Human Resources Director’s memorandum is further support for this interpretation of the relationship. In similar circumstances, Minnesota appellate courts have frequently upheld summary dismissal of a breaeh-of-eontract claim. See, e.g., Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769 (Minn.App.1987). The district court correctly granted summary judgment dismissing Friedman’s contract claim. 2. Promissory Estoppel. The effect of the doctrine of promissory estoppel “is to imply a contract in law where none exists in fact.” Grouse v. Group Health Plan, 306 N.W.2d 114, 116 (Minn.1981). In Grouse, the Supreme Court of Minnesota applied the doctrine to a prospective employee who quit his job and turned down another offer in rebanee on an employment offer and then was never given a “good faith opportunity to perform his duties.” The Court emphasized that, because defendant had offered only an at-will position, damages should be measured by what plaintiff lost in quitting his prior employ and toning down the other offer. Friedman argues that his promissory es-toppel claim should survive BRW’s motion for summary judgment, relying on broad language used by the Minnesota Court of Appeals in reversing summary dismissal of promissory estoppel claims in Eklund v. Vincent Brass & Alum. Co., 351 N.W.2d 371, 378 (Minn.App.1984), and Rognlien, 443 N.W.2d at 220. However, in both of those eases, the employer had made a sufficiently clear and definite promise of long-term employment that summary dismissal of plaintiffs breach-of-contract claim was reversed as well. In our view, other recent Minnesota eases confirm that the promissory estoppel aspect of the decisions in Eklund and Rognlien must be limited to similarly definite offers of long-term employ. See Spanier v. TCF Bank Savings, 495 N.W.2d 18, 21 (Minn.App.1993); Harris v. Mardan Business Systems, Inc., 421 N.W.2d 350, 354 (Minn.App.1988); Aberman, 414 N.W.2d at 772-73; Corum v. Farm Credit Services, 628 F.Supp. 707, 715-16 (D.Minn.1986). Promissory estoppel requires proof of a promise, albeit one falling short of creating an" } ]

[ { "docid": "2535786", "title": "", "text": "v. Bogard, 494 N.E.2d 965, 968-69 (Ind.App.1986); Wood v. Mid-Valley Inc., 942 F.2d 425, 428 (7th Cir.1991) (Indiana law); Major Mat Co. v. Monsanto Co., 969 F.2d 579, 582-83 (7th Cir.1992), its terms need not be as clear as a contractual promise would have to be in order to be enforceable. E.g., Janke Construction Co. v. Vulcan Materials Co., 527 F.2d 772, 777 (7th Cir.1976) (Wisconsin law); Hawkins Construction Co. v. Reiman Corp., 245 Neb. 131, 511 N.W.2d 113, 117 (1994); Neiss v. Ehlers, 135 Or.App. 218, 899 P.2d 700, 707 (1995). Indiana may go furthest in this direction: “Even though there were insufficient terms for the enforcement of an express oral contract, and unfulfilled pre-existing conditions prohibiting recovery for breach of a written contract ..., we are not precluded from finding a promise under these circumstances. Indeed, it is precisely under such circumstances, where a promise is made but which is not enforceable as a ‘contract,’ that the doctrine of promissory estoppel is recognized.” First National Bank of Logansport v. Logan Mfg. Co., supra, 577 N.E.2d at 955. The reason for this difference between breach of contract and promissory estoppel is unclear. A stab at an explanation is found in Rosnick v. Dinsmore, 235 Neb. 738, 457 N.W.2d 793, 800 (1990), where the court said that “promissory estoppel only provides for damages as justice requires and does not attempt to provide the plaintiff damages based upon the benefit of the bargain. The usual measure of damages under a theory of promissory estoppel is the loss incurred by the promisee in reasonable reliance on the promise, or ‘reliance damages.’ Reliance damages are relatively easy to determine, whereas the determination of ‘expectation’ or ‘benefit of the bargain’ damages available in a contract action requires more detailed proof of the terms of the contract.” The only problem with this explanation is that its premise is mistaken; if the promise giving rise to an estoppel is clear, the plaintiff will usually be awarded its value, which would be the equivalent of the expectation measure of damages in an ordinary breach of contract case." }, { "docid": "2132688", "title": "", "text": "opportunity to prevail on several of their claims grounded in law that will go forward. For these reasons, the Court will grant defendants motion for summary judgment on the Damons unjust enrichment claim. P. Promissory Estoppel The elements of promissory estoppel are: (1) a clear and definite promise; (2) intended to induce reliance; (3) detrimental reliance by the promise; and (4) a legal finding by the Court that the promise must be enforced to prevent an injustice. Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992). “[T]he doctrine of promissory estoppel only applies where no contract exists.” Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881 (Minn.Ct.App.1995) (citing Sacred Heart Farmers Coop. Elevator v. Johnson, 305 Minn. 324, 232 N.W.2d 921, 923 n. 1 (1975)). Here, the purported promises are Dan G.’s promises to “take care of ... the leasing of [the] condos” and to market the Damons’ units and help find tenants. (Pis.’ Mem. at 10, Sept. 14, 2012, Docket No. 163.) Defendants move' for summary judgment on the ground that the alleged promises are not sufficiently clear and definite. They rely on Ott v. Target Corp., where this District rejected a promissory estoppel claim premised on a promise to “aggressively promote and advertise” a plaintiffs product. See 153 F.Supp.2d 1055, 1077 (D.Minn.2001) (“[Defendant] argues that [Defendant’s alleged promises to ‘aggressively promote and advertise’ [Plaintiff]’s dolls is not sufficiently clear and definite to support a claim of promissory estoppel. The Court agrees.” (citation omitted)). The Court finds that the alleged promises, which are at least as vague as the promise in Ott, are'not sufficiently clear and definite to support the Damons’ claim. Additionally, while there is no contract potentially providing a legal remedy for the Damons in relation to the alleged promises, the Damons’ fraud and misrepresentation claims provide adequate legal, as opposed to equitable, remedies. See Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 152 (Minn.2001) (“[Promissory estoppel is a creature of equity.”); ServiceMaster of St. Cloud, 544 N.W.2d at 305 (“A party may not have equitable relief where there is an adequate remedy at" }, { "docid": "2289623", "title": "", "text": "confidentiality concerning allegations of Thomas’s cocaine use, and that the allegations became common knowledge within the Center among staff and patients, and within the greater St. Luke’s system. The court notes that defendants’ assertion of these affirmative defenses to the defamation claim is procedurally inadequate. Qualified privilege to a defamation claim is an affirmative defense that Iowa law expressly states must be pleaded. Vinson v. Linn-Mar Community Sch. Dist., 360 N.W.2d 108, 116 (Iowa 1984); Higgins v. Gordon Jewelry Corp., 433 N.W.2d 306, 311 (Iowa App.1988) (quoting Vinson). Under Iowa law, an affirmative defense is one which rests on facts not necessary to support the plaintiffs ease. Erickson v. Wright Welding Supply, Inc., 485 N.W.2d 82, 85-86 (Iowa 1992); Knauss v. City of Des Moines, 357 N.W.2d 573, 576 (Iowa 1984); Peoples Trust & Sav. Bank v. Baird, 346 N.W.2d 1, 4 (Iowa 1984); Baker v. Beal, 225 N.W.2d 106 (Iowa 1975). Any defense which would avoid liability although admitting the allegations of the petition is an affirmative defense. Erickson, 485 N.W.2d at 86 (citing 1 B. Lindahl Iowa Practice § 13.39 (1991)). Defendants have not pleaded these or any other affirmative defenses. Such failure to plead an affirmative defense ordinarily results in waiver of the defense. See, e.g., Erickson, 485 N.W.2d at 85-86 (although defendant would ordinarily have waived an affirmative defense not pleaded on the basis of Iowa Rules of Civil Procedure 72, 101, and 104, a defense under Iowa Code § 613.18 was not such an affirmative defense, and was not waived); Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1266 (8th Cir.1994) (applying Missouri law, and holding that failure to plead affirmative defense of estoppel waived that defense), cert. denied, — U.S. -, 115 S.Ct. 487, 130 L.Ed.2d 399 (1994); Bissett v. Burlington Northern R.R. Co., 969 F.2d 727, 731 (8th Cir.1992) (failure to plead affirmative defense results in waiver of the defense and its exclusion from the case, citing Sayre v. Musicland Group, Inc., 850 F.2d 350, 354 (8th Cir.1988)); Piekarski v. Home Owners Sav. Bank, F.S.B., 956 F.2d 1484, 1489 (8th Cir.1992)" }, { "docid": "5120067", "title": "", "text": "to support a jury verdict.” White v. Pence, 961 F.2d 776, 779 (8th Cir.1992). We view the “evidence in the light most favorable to the prevailing party and must not engage in a weighing or evaluation of the evidence or consider questions of credibility.” Id. Judgment as a matter of law is appropriate only when all of the evidence points one way and is “susceptible of no reasonable inference sustaining the position of the nonmoving party.” Id. Keenan v. Computer Assoc. Int'l, Inc., 13 F.3d 1266, 1268-69 (8th Cir.1994). III. Decision To establish liability on the basis of promissory estoppel, the plaintiff must establish three essential elements: (1) A clear and definite agreement; (2) Proof that the party seeking to enforce the agreement reasonably relied upon it to his detriment; and (3) A finding that the equities support enforcement of the agreement. Uhl v. City of Sioux City, 490 N.W.2d 69, 73 (Iowa App.1992) (citations omitted). The jury found Carriage House established these elements. The Iowa courts have not explicitly defined “a clear and definite agreement,” but the Supreme Court of Iowa compared and contrasted three cases involving this element. National Bank of Waterloo v. Moeller, 434 N.W.2d 887, 889 (Iowa 1989) (discussing In re Estate of Graham, 295 N.W.2d 414, 418-19 (Iowa 1980); Johnson v. Pattison, 185 N.W.2d 790, 795-97 (Iowa 1971); Miller v. Lawlor, 245 Iowa 1144, 66 N.W.2d 267, 272-75 (1954)). The Moeller court explained: By way of distinguishing these cases, we observe that Miller, and Pattison, unlike Graham, demonstrated a clear understanding by the promisor that the promis-ee was seeking an assurance upon which he could rely and without which he would not act. See Miller, 245 Iowa at 1165, 66 N.W.2d at 274. This dual emphasis on clarity and inducement parallels the Restatement (Second) definition of an agreement for purposes of promissory estoppel as “[a] promise which the promisor should reasonably expect to induce action ... on the part of the promisee.” Restatement (Second) of Contract § 90 (1981). 434 N.W.2d at 889. Simmons admits it had an agreement with Carriage House whereby Simmons would" }, { "docid": "8871112", "title": "", "text": "his promissory estoppel claim. The District Court rejected this argument, holding that Casazza’s promissory estoppel claim rests on the same purported promise that forms the basis of his breach of contract claim and that to allow Casazza to pursue the promissory estoppel claim, despite the lack of a sufficient writing, “would negate the purpose of the statute of frauds.” Memorandum and Order, January 15, 2002, at 5 n. 1. Promissory estoppel implies “a contract in law where none exists in fact.” Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981). “Under promissory estoppel, a promise which is expected to induce definite action by the promisee, and does induce the action, is binding if injustice can be avoided only by enforcing the promise.” Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992) (citations omitted); see also Grouse, 306 N.W.2d at 116. In Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 230 N.W.2d 588, 593-94 (1975), the Minnesota Supreme Court identified three approaches courts have taken concerning the applicability of the statute of frauds defense to promissory estoppel claims. Under the first (or “Restatement”) approach, “promissory estoppel will defeat the statute of frauds only when the promise relied upon is a promise to reduce the contract to writing.” Id. The second approach described by the court, and adopted in numerous jurisdictions, rejects “the view that promissory estoppel can remove an oral contract from the statute of frauds.” Id. at 594; see also Lige Dickson Co. v. Union Oil Co., 96 Wash.2d 291, 635 P.2d 103, 107 (1981) (holding “promissory estoppel cannot be used to overcome the statute of frauds in a case which involves the sale of goods”). According to the court, jurisdictions that have adopted this approach “do so because a promissory estoppel exception would likely render the statute of frauds nugatory.” Del Hayes, 230 N.W.2d at 594; see also McDabco, Inc. v. Chet Adams Co., 548 F.Supp. 456, 461 (D.S.C.1982) (“The [South Carolina] legislature has provided that the only exceptions to the requirements of a written contract of sale are provided in Sections 36-2-201(2) and" }, { "docid": "13257448", "title": "", "text": "Hutton, Inc., 514 U.S. 52, 62-63 & n. 9, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995); G. Wilner, 1 Domke on Commercial Arbitration § 4:04, at 15 (Rev. ed. Supp.1993)); accord AgGrow Oils, L.L.C. v. National Union Fire Ins. Co., 242 F.3d 777, 780 (8th Cir.2001) (applying North Dakota contract law to determine whether incorporation clause included arbitration provision); Lyster, 239 F.3d at 946 (“State contract law governs whether an arbitration agreement is valid.”); Keymer, 169 F.3d at 504 (same). As discussed above, Iowa law guides the court’s assessment of whether Excel and Owen entered into a valid agreement to arbitrate in this instance. Under Iowa law, the elements of a valid contract are offer, acceptance, and consideration. E.g., Taggart v. Drake Univ., 549 N.W.2d 796, 800 (Iowa 1996); McBride v. City of Sioux City, 444 N.W.2d 85, 91 (Iowa 1989) (same). While Owen challenges whether there was a valid offer and acceptance of the DRP, he does not raise the defense of lack of consideration. The Iowa Supreme Court refuses to address the issue unless raised by the parties. See, e.g., Anderson, 540 N.W.2d at 283 n. 3 (citing Hubbard Milling Co. v. Citizens State Bank, 385 N.W.2d 255, 258 (Iowa 1986) (examining adequacy of consideration only when lack of consideration defense is raised)). Nevertheless, it suffices to say that the DRP cites continued employment and the mutual promise to resolve disputes according to the terms of the plan as consideration. Under Iowa law, this type of consideration will support a contract. See French, 495 N.W.2d at 770 (continued employment provides consideration); Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 455 (Iowa 1989) (same); McBride v. City of Sioux City, 444 N.W.2d 85, 91 (Iowa 1989) (same). 2. Bilateral and unilateral contracts In their briefs and at oral argument, the parties focused on the unilateral contract analysis employed by the Iowa Supreme Court in cases involving whether employee handbooks create employment . contracts. See, e.g., Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 203-04 (1997) (finding employee handbook did not constitute offer on ground disclaimer evinced intent" }, { "docid": "16841103", "title": "", "text": "Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir.1996). The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995). A party opposing a properly supported motion for summary judgment “may not rest upon the mere allegations or. denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). II. Ogle’s Motion for Summary Judgment A. Promissory Estoppel (Count V) Ogle moves for summary judgment on Count V of the Amended Complaint, in which Reisdorf claims that Ogle made an enforceable promise under the doctrine of promissory estoppel. (See Doc. No. 53 at 8-14.) Under Minnesota law, “[promissory estoppel is an equitable doctrine that implies a contract in law where none exists in fact.” Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 746 (Minn.2000). “To state a claim for promissory estoppel, the plaintiff must show that (1) there was a clear and definite promise, (2) the promisor intended to induce reliance and such reliance occurred, and (3) the promise must be enforced to prevent injustice.” Park Nicollet Clinic v. Hamann, 808 N.W.2d 828, 834 (Minn.2011); see also Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn.1995) (citing Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992)). Ogle argues that he is entitled to summary judgment on Reisdorfs promissory estoppel claim because Reisdorf has failed to show that he is entitled to equitable relief. (See Doc. No. 53 at 8-11.) First, Ogle asserts that neither of the" }, { "docid": "16841104", "title": "", "text": "Count V of the Amended Complaint, in which Reisdorf claims that Ogle made an enforceable promise under the doctrine of promissory estoppel. (See Doc. No. 53 at 8-14.) Under Minnesota law, “[promissory estoppel is an equitable doctrine that implies a contract in law where none exists in fact.” Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 746 (Minn.2000). “To state a claim for promissory estoppel, the plaintiff must show that (1) there was a clear and definite promise, (2) the promisor intended to induce reliance and such reliance occurred, and (3) the promise must be enforced to prevent injustice.” Park Nicollet Clinic v. Hamann, 808 N.W.2d 828, 834 (Minn.2011); see also Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn.1995) (citing Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992)). Ogle argues that he is entitled to summary judgment on Reisdorfs promissory estoppel claim because Reisdorf has failed to show that he is entitled to equitable relief. (See Doc. No. 53 at 8-11.) First, Ogle asserts that neither of the two alleged promises made by Ogle to Reisdorf — that the Hasses were aware that DevGroup would be formed and conducted as a for-profit entity and that Reisdorf would be entitled to certain salary and other benefits and would not be terminated if he apologized to the Hasses — can form the basis for a-promissory estoppel claim due to the existence of Reisdorfs employment contract,' which precludes his promissory estoppel claim. (Id. at 9.) Second, Ogle contends that even if the alleged promises could form the basis for Reisdorfs promissory estoppel claim, “Reisdorfs claims are still barred because he did not rely oh them to his detriment, and any alleged reliance was not reasonable.” (Id.) Therefore, Ogle argues that he is entitled to summary judgment on Count V. Reisdorf, on the other hand, argues that the Court should deny Ogle’s motion because the Employment Agreement is not a legally enforceable contract and because Reisdorf relied to his detriment on Ogle’s alleged oral promises. (See Doc. No. 94 at 9-10.) First, Reisdorf argues that “[because the" }, { "docid": "5120066", "title": "", "text": "not supply and Carriage House did not process any significant amount of turkey using the equipment purchased by Carriage House for the project. Simmons paid one-half of Carriage House’s expenses relating to the project from May of 1991 to June of 1992. Carriage House brought this action in March of 1998 claiming Simmons had guaranteed that after an initial start-up period it would supply 50,000 pounds of turkey per week for processing and packaging by Carriage House. During trial Carriage House claimed damages in the amount of $1,237,464 for out-of-pocket expenses and lost profits. The jury awarded $96,794 to Carriage House. II. Standard of Review We review de novo the district court’s denial of a motion for judgment as a matter of law, using the same standards as the district court. Smith v. World Insurance Co., 38 F.3d 1456, 1460 (8th Cir.1994) (citations omitted). We have explained that: A motion for judgment as a matter of law presents a legal question to the district court and this court on review: “whether there is sufficient evidence to support a jury verdict.” White v. Pence, 961 F.2d 776, 779 (8th Cir.1992). We view the “evidence in the light most favorable to the prevailing party and must not engage in a weighing or evaluation of the evidence or consider questions of credibility.” Id. Judgment as a matter of law is appropriate only when all of the evidence points one way and is “susceptible of no reasonable inference sustaining the position of the nonmoving party.” Id. Keenan v. Computer Assoc. Int'l, Inc., 13 F.3d 1266, 1268-69 (8th Cir.1994). III. Decision To establish liability on the basis of promissory estoppel, the plaintiff must establish three essential elements: (1) A clear and definite agreement; (2) Proof that the party seeking to enforce the agreement reasonably relied upon it to his detriment; and (3) A finding that the equities support enforcement of the agreement. Uhl v. City of Sioux City, 490 N.W.2d 69, 73 (Iowa App.1992) (citations omitted). The jury found Carriage House established these elements. The Iowa courts have not explicitly defined “a clear and definite" }, { "docid": "8871111", "title": "", "text": "Kiser filed his motion to dismiss. While Casazza’s response to this motion was due before the parties’ pretrial disclosures, Casazza did not request additional time to file his response. The District Court held a hearing on the motion to dismiss on January 14, 2002. By that time — six months after the suit was filed— Casazza still had not produced any writing sufficient to satisfy the statute of frauds nor had he obtained an admission from Kiser that a contract existed. Given the period of time that elapsed and the conclu-sory nature of Casazza’s request for a continuance, we find the District Court did not abuse its discretion by denying further discovery and ruling on the motion to dismiss. See id. (“A conclusory statement that some useful evidence could possibly be found is insufficient to preclude the termination of discovery.”). B. Promissory Estoppel Casazza alternatively argues that even if the alleged contract fails to satisfy the statute of frauds, his case should be permitted to proceed because a statute of frauds defense is inapplicable to his promissory estoppel claim. The District Court rejected this argument, holding that Casazza’s promissory estoppel claim rests on the same purported promise that forms the basis of his breach of contract claim and that to allow Casazza to pursue the promissory estoppel claim, despite the lack of a sufficient writing, “would negate the purpose of the statute of frauds.” Memorandum and Order, January 15, 2002, at 5 n. 1. Promissory estoppel implies “a contract in law where none exists in fact.” Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981). “Under promissory estoppel, a promise which is expected to induce definite action by the promisee, and does induce the action, is binding if injustice can be avoided only by enforcing the promise.” Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992) (citations omitted); see also Grouse, 306 N.W.2d at 116. In Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 230 N.W.2d 588, 593-94 (1975), the Minnesota Supreme Court identified three approaches courts have taken concerning the applicability of the statute" }, { "docid": "11504238", "title": "", "text": "alleged promises to Midway’s detriment. 50. Northwest alleges that Midway cannot recover on its promissory estoppel claim based on the following affirmative defenses: (1) in Paragraph 7 of the Confidentiality Agreement, Midway waived its claim for promissory estoppel; (2) Midway’s promissory estoppel claim is barred because Northwest was induced to make the alleged promises by Midway’s misrepresentations or omissions regarding the data Midway submitted to the DOT; (3) this claim is barred because Northwest made the alleged promises in the mistaken belief that the data Midway submitted to the DOT was reasonably accurate; and (4) this claim is barred because Midway repudiated any agreement resulting from the alleged promises by demanding terms that were materially different from the terms set forth at the October 8 hearing. This Court has already found that those defenses lack merit, and thus will not reconsider those defenses. See Count I. 51. In addition, Northwest alleges that Midway’s promissory estoppel claim is barred by the doctrine of unclean hands. Northwest asserts that Midway had unclean hands in that Midway allegedly filed false information with the DOT and misrepresented and failed to disclose material facts concerning its data submitted to the DOT, which caused Northwest to participate in the October 8 hearing and to make the alleged promises. 52. In Count I of the Counterclaim, the Court found that Midway did not commit fraudulent misrepresentation in connection with the data filed with the DOT. The Court adopts and incorporates by reference those findings. CONCLUSIONS OF LAW 1. Promissory estoppel is an equitable tool that allows the Court to infer a contract where none would otherwise exist. Quake Constr., Inc. v. American Airlines, Inc., 141 Ill.2d 281, 309-10, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990); Dickens v. Quincy College Corp., 245 Ill.App.3d 1055, 1062, 185 Ill.Dec. 822, 827, 615 N.E.2d 381, 386 (4th Dist.1993); Genin, Trudeau & Co. v. Integra Dev. Int’l, 845 F.Supp. 611, 616 (N.D.Ill.1994). “Promissory estoppel is an equitable device invoked to prevent a person from being injured by a change in position made in reasonable rebanee on another’s conduct.” Lawrence v." }, { "docid": "8656976", "title": "", "text": "of promissory estoppel, Fox argues that her employment with T-H was not at will, but instead was “permanent” and terminable only for cause. Promissory estoppel is an equitable remedy that “may be used to enforce a promise of employment where no express contract of employment exists.” Eklund v. Vincent Brass and Aluminum Co., 351 N.W.2d 371, 378 (Minn.Ct.App.1984) (citing Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981)). To prevail on a claim of promissory estoppel under Minnesota law an employee must show three things: (1) that the employer made a clear and definite promise to the employee; (2) that the employer intended to induce the employee to rely on the promise and that the employee did so rely; and (3) that an injustice will occur unless the promise is enforced. See Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn.1995) (citing Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992)). In this case, the first element of a promissory estoppel claim is entirely absent. Fox produced no evidence that T-H made a clear and definite promise of continued employment terminable only for cause. Her evidence thus was insufficient as a matter of law to overcome Minnesota’s strong presumption of at-will employment, and T-H therefore was entitled to judgment as a matter of law. Fox argues that the conduct of the parties shows that T-H made a clear and definite promise to her. Appellee’s Br. at 18. She points to her successful three-year history with Tollman-Hundley Hotels in Denver and her successful completion of a three-and-one-half-month probationary period as temporary director of sales in Minnesota. Id. at 18-19. Fox fails to explain, however, how these events supply evidence that T-H made a clear and definite promise to her of continued employment terminable only for cause. “A long term of service and good perfor manee review do not, by themselves, justify an implied contract term for continued employment.” Corum, 628 F.Supp. at 715; see also Dumas v. Kessler & Maguire Funeral Home, Inc., 380 N.W.2d 544, 546 (Minn.Ct.App.1986). Fox’s successful past performance thus is not evidence" }, { "docid": "22819261", "title": "", "text": ". Having found the clause ambiguous, we appropriately consider extrinsic evidence to interpret this contract provision. See Marren v. Mutual Life Ins. Co. of New York, 84 F.3d 1068, 1070 (8th Cir.1996); Uhl v. City of Sioux City, 490 N.W.2d 69, 73 (Iowa.Ct.App.1992); Farragut v. Massey, 612 So.2d 325, 329 (Miss.1992). . Our references to portions of the License Agreement that refer to possible design defects merely bolster our belief that the forum selection clause applies to Terra's common law tort claims. We express no views regarding the applicability of any other provision (including any provision for the limitation of liability or damages) of the License Agreement to Terra's tort claims. . In The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1971), the Supreme Court also suggests that the burden shifts to the party resisting the application of a forum selection clause to demonstrate that enforcement of the clause would be unreasonable. The breadth of this holding, however, is unclear due to the fact that the Court subsequently states that \"this is the correct doctrine to be followed by federal district courts sitting in admiralty.” Id. . The district court in Mississippi reached this very conclusion. Unlike the Iowa district court, the Mississippi court believed that the convenience factors favored Iowa but determined that the forum selection clause outweighed these considerations. See Mississippi Chem. Corp., 1996 WL 293764, *3. . In the district court, Terra initially argued that because it filed its lawsuit in Iowa a few hours before MCC filed its lawsuit in Mississippi, the first-filed rule dictates that this litigation should proceed in Iowa. See United States Fire Ins. Co. v. Goodyear Tire & Rubber Co., 920 F.2d 487, 488 (8th Cir.1990) (first-filed rule gives priority, for purposes of choosing among possible venues when parallel litigation has been instituted in separate courts, to the party who first established jurisdiction). The district court concluded that the first-filed rule does not \"trump” the transfer analysis and reasoned that when a transfer analysis under section 1404(a) dictates that a case should be" }, { "docid": "16841107", "title": "", "text": "As discussed below, the Court finds that Reisdorfs Employment Agreement constitutes a legally enforceable contract and, accordingly, any alleged oral promises made by Ogle about Reisdorf's salary and commission cannot support a promissory estoppel claim. See Fox v. T-H Cont’l Ltd. P’ship, 78 F.3d 409, 413 (8th Cir.1996) (providing that, in the' employment area, promissory estoppel is an “equitable remedy that may be used to enforce a promise of employment where no express contract of employment exists”) (internal citations omitted); Martens, 616 N.W.2d at 746; Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881 (Minn.Ct.App.1995). Furthermore, even assuming that the Employment Agreement is not a legally enforceable contract, and viewing the facts in the light most favorable to Reisdorf, the Court finds that Reisdorf has failed to present sufficient evidence to allow a reasonable juror to find that he has satisfied all three elements of his promissory estoppel claim. Specifically, the Court finds that, even if Reisdorf could show a “clear and definite” promise was made by Ogle to Reisdorf, Reisdorf cannot show both reasonable and detrimental reliance on Ogle’s alleged promises. See Hamann, 808 N.W.2d at 834; Ruud, 526 N.W.2d at 372. Finally, with respect to the third element of his promissory estoppel claim, the Court finds 'that, under the totality of the circumstances, this situation does not require enforcement of the promise to prevent clear injustice. See Cohen, 479 N.W.2d at 391. In sum, the Court concludes that Reisdorfs promissory estoppel claim fails as a matter of law because the Court finds that the existence of an enforceable contract precludes Reisdorfs promissory estoppel claim and that, even assuming that the Employment Agreement is unenforceable, Reisdorf is unable to prove all elements of his promissory estoppel claim. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Accordingly, the Court grants Ogle’s motion for summary judgment on Count V. B. Slander (Count VI) Ogle moves for summary judgment on Count VI of the Amended Complaint, in which Reisdorf asserts a claim of slander against Ogle. (See Doc. No. 53 at 14-21.) “In Minnesota, a plaintiff pursuing a defamation claim must" }, { "docid": "18303884", "title": "", "text": "relies on the same evidence upon which he tried to base his claim of permanent employment. As previously discussed, however, the statements to which plaintiff points and plaintiff’s foregoing other opportunities does not constitute conduct manifesting an intent to modify the at-will employment relationship. Finally, plaintiff argues that the Court should allow counts 3 and 5 to go to a jury because summary judgment is inappropriate in a breach of contract claim where the contract and its terms are in dispute. Eklund, 351 N.W.2d at 376. Summary judgment, however, is appropriate where, even accepting a plaintiff’s version of the facts as true, the plaintiff cannot establish a modification of the at-will employment doctrine. Dumas, 380 N.W.2d at 546; Bakker, 355 N.W.2d at 331; see also Degen, 110 N.W.2d 863 (affirming summary judgment); Montgomery, 350 N.W.2d at 408 (same). Promissory Estoppel (Count 6) In his sixth cause of action, plaintiff asserts that he is entitled to recover against defendant on the basis of promissory estoppel. The necessary elements for a cause of action under this doctrine are: 1. the defendant made a promise; 2. the defendant expected or should have reasonably expected the promise to induce substantial and definite action by the promisee; 3. the promise did induce such action; 4. the promise must be enforced to avoid injustice. AFSCME Councils v. Sundquist, 338 N.W.2d 560, 568 (Minn.1983), appeal dismissed, 466 U.S. 933, 104 S.Ct. 1902, 80 L.Ed.2d 452 (1984); Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981). Defendant argues that to allow plaintiff to assert a cause of action for promissory estoppel when plaintiff cannot maintain an action for breach of a covenant of good faith, would totally circumvent the Minnesota Supreme Court’s decision in Pine River. See Grouse, 306 N.W.2d at 116 (employer not liable under promissory estoppel whenever employer discharges an at-will employee); Dumas, 380 N.W.2d at 548 (same). Plaintiff responds that the very purpose of promissory estoppel is to provide a cause of action where traditional contract law does not. Grouse, 306 N.W.2d at 116; see also Eklund, 351 N.W.2d at 378 (plaintiff could" }, { "docid": "16841132", "title": "", "text": "Estoppel (Count V) Reisdorfs claim under the doctrine,,, of promissory estoppel is based on the same underlying facts as his claim under contract law. Because promissory estoppel is a creature of equity that implies “a contract in law where, none exists in fact,” Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981), such a claim may not proceed where, a legally enforceable contract was formed. Gorham v. Benson Optical, 539 N.W.2d 798, 801-02 (Minn.Ct.App.1995). Here, i3 and LI assert that a valid contract existed, and thus contend that any promissory estoppel claim is precluded. (See Doc. No. 64 at 28-32.) The Court agrees and finds that Reisdorfs promissory estoppel claim against i3 and LI fails for the same reasons discussed above with respect to his claim against Ogle. Furthermore, the Court finds that even if Reisdorf and i3 and LI had not entered a valid, contract regarding benefits and salaries, but i3 and LI otherwise had promised to pay such benefits or salaries, Reisdorf has failed to produce evidence to show that the alleged statements create .a definite promise on which a person of Reisdorfs experience could reasonably rely. Promissory estoppel does not provide a means to evade .the fact that the claimant failed to establish breach of the contract; rather, it provides an equitable basis for recovery of a promised benefit where the requirements for the formation of an enforceable contract - cannot be met: See Martens, 616 N.W.2d at 746. Based on Reisdorf s submissions and arguments, the Court concludes that Reisdorf cannot establish the elements of a promissory estoppel claim. See Hamann, 808 N.W.2d at 834; Ruud, 526 N.W.2d at 372. Therefore, the Court concludes that i3 and LI are entitled to summary judgment on Count V. 3. Interference with Contract (Count XI) In Count XI, DevGroup alleges that i3 and LI interfered with DevGroup’s contract with John Ryan. (Am. Compl. ¶¶ 312-15.) However, iri its brief in opposition to i3 and Li’s motion for summary judgment, DevGroup “agree[s] that here there is only termination of the John Ryan contract, and Defendants are entitled to" }, { "docid": "5120068", "title": "", "text": "agreement,” but the Supreme Court of Iowa compared and contrasted three cases involving this element. National Bank of Waterloo v. Moeller, 434 N.W.2d 887, 889 (Iowa 1989) (discussing In re Estate of Graham, 295 N.W.2d 414, 418-19 (Iowa 1980); Johnson v. Pattison, 185 N.W.2d 790, 795-97 (Iowa 1971); Miller v. Lawlor, 245 Iowa 1144, 66 N.W.2d 267, 272-75 (1954)). The Moeller court explained: By way of distinguishing these cases, we observe that Miller, and Pattison, unlike Graham, demonstrated a clear understanding by the promisor that the promis-ee was seeking an assurance upon which he could rely and without which he would not act. See Miller, 245 Iowa at 1165, 66 N.W.2d at 274. This dual emphasis on clarity and inducement parallels the Restatement (Second) definition of an agreement for purposes of promissory estoppel as “[a] promise which the promisor should reasonably expect to induce action ... on the part of the promisee.” Restatement (Second) of Contract § 90 (1981). 434 N.W.2d at 889. Simmons admits it had an agreement with Carriage House whereby Simmons would supply raw turkey meat, Carriage House would process and package it and Simmons would market the end products. Simmons, however, claims there is not sufficient evidence in the record from which a reasonable juror could find by a preponderance of the evidence that Simmons made an oral guarantee to supply 50,000 pounds of turkey per week to Carriage House for processing following an initial start-up period. Rather Simmons asserts the 50,000 pounds per week figure was a goal that all parties hoped to achieve and even surpass. We agree with Simmons and find the evidence is not susceptible to a reasonable inference that the parties had a clear and definite agreement containing a poundage guarantee by Simmons. The evidence in the record does not point toward the existence of a poundage guarantee by Simmons, rather it points toward the existence of a 50,000 pound per week goal or projection by the parties. The only evidence of such a guarantee is the testimony of Walter who stated in a general manner that Simmons made a poundage" }, { "docid": "11117927", "title": "", "text": "alleged oral contract, entered into by the parties on December 24, 1992, was to cover a period of January 4, 1993 to December 31, 1993, with an eighteen month non-compete agreement. Integra argues that the statute of frauds bars Genin’s claims based upon this agreement. The Illinois Statute of Fraud provides: No action shall be brought ... upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized. 740 ILCS 80/1 (West 1993). The alleged oral agreement here could not have been performed within one year of its making. Thus, the question becomes, can the Plaintiff justify taking the agreement out of the statute of frauds? On that question, Plaintiff has two arrows in its quiver, promissory estoppel and partial performance, and we shall address each in turn. A. Promissory Estoppel In Count III, Genin claims promissory estoppel. Promissory estoppel is an equitable tool that allows the court to infer a contract where none would otherwise exist. Dickens v. Quincy College Corp., 245 Ill. App.3d 1055, 185 Ill.Dec. 822, 826, 615 N.E.2d 381, 385 (1993). The elements of promissory estoppel are: (1) a promise unambiguous in terms; (2) with reliance thereon by the promisee; (3) with such reliance being expected and foreseeable by the promisor; (4) and with the promisee in fact relying on the promise to his injury. A-Abart Elec. Supply v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th Cir.1992) (citations omitted); Phillips v. Britton, 162 Ill.App.3d 774, 114 Ill. Dec. 537, 545, 516 N.E.2d 692, 700 (1987). In order to invoke the doctrine, the promisee’s reliance must be “reasonable and justifiable.” Geva v. Leo Burnett Co., 931 F.2d 1220, 1223 (7th Cir.1991) (citations omitted). It is clear that a plaintiff may recover on a promissory estoppel theory despite the absence of a contract. Quake Constr. v. American Airlines, 141" }, { "docid": "8656975", "title": "", "text": "the nonmoving party, giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence. Id. This Court will not set aside a jury’s verdict lightly, Nicks v. Missouri, 67 F.3d 699, 704 (8th cir.1995), nor will we “engage in a weighing or evaluation of the evidence or consider questions of credibility,” Keenan v. Computer Assocs. Int% Inc., 13 F.3d 1266, 1268-69 (8th Cir.1994). We conclude that Fox failed to present sufficient evidence at trial to withstand T-H’s motion. In Minnesota, the “usual employer-employee relationship is terminable at the will of either” party. Cederstrand v. Lutheran Bhd., 263 Minn. 520, 117 N.W.2d 213, 221 (1962). This means that the employer can summarily dismiss an employee for any reason or no reason at all, and similarly the employee is under no obligation to remain on the job. Corum v. Farm Credit Servs., 628 F.Supp. 707, 712 (D.Minn.1986). There is a “strong presumption” of at-will status in Minnesota. Spanier v. TCF Bank Sav., 495 N.W.2d 18, 21 (Minn.Ct.App.1993). Relying on the doctrine of promissory estoppel, Fox argues that her employment with T-H was not at will, but instead was “permanent” and terminable only for cause. Promissory estoppel is an equitable remedy that “may be used to enforce a promise of employment where no express contract of employment exists.” Eklund v. Vincent Brass and Aluminum Co., 351 N.W.2d 371, 378 (Minn.Ct.App.1984) (citing Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981)). To prevail on a claim of promissory estoppel under Minnesota law an employee must show three things: (1) that the employer made a clear and definite promise to the employee; (2) that the employer intended to induce the employee to rely on the promise and that the employee did so rely; and (3) that an injustice will occur unless the promise is enforced. See Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn.1995) (citing Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992)). In this case, the first element of a promissory estoppel claim is entirely absent. Fox produced no evidence that" }, { "docid": "11117928", "title": "", "text": "turn. A. Promissory Estoppel In Count III, Genin claims promissory estoppel. Promissory estoppel is an equitable tool that allows the court to infer a contract where none would otherwise exist. Dickens v. Quincy College Corp., 245 Ill. App.3d 1055, 185 Ill.Dec. 822, 826, 615 N.E.2d 381, 385 (1993). The elements of promissory estoppel are: (1) a promise unambiguous in terms; (2) with reliance thereon by the promisee; (3) with such reliance being expected and foreseeable by the promisor; (4) and with the promisee in fact relying on the promise to his injury. A-Abart Elec. Supply v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th Cir.1992) (citations omitted); Phillips v. Britton, 162 Ill.App.3d 774, 114 Ill. Dec. 537, 545, 516 N.E.2d 692, 700 (1987). In order to invoke the doctrine, the promisee’s reliance must be “reasonable and justifiable.” Geva v. Leo Burnett Co., 931 F.2d 1220, 1223 (7th Cir.1991) (citations omitted). It is clear that a plaintiff may recover on a promissory estoppel theory despite the absence of a contract. Quake Constr. v. American Airlines, 141 Ill.2d 281, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990). Were there not a statute of frauds problem, this issue would be much clearer. Unfortunately, the precise question presented, whether the defense of promissory estoppel can take a contract out of the statute of frauds is, at best, an unsettled one in the Illinois courts. Phillips v. Britton, 162 Ill. App.3d 774, 114 Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (1987) (“The law in Illinois is unsettled as to whether an action based on promissory estoppel can prevail, where, as here, the action would otherwise fall within the Statute of Frauds.”). Two cases, one from the Illinois Supreme Court, the other from the Seventh Circuit, are the major precedents on this question. We address those cases, and their progeny, respectively. The aging landmark case in Illinois is Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 202 N.E.2d 516 (1964), where the Illinois Supreme Court found that equitable estoppel, a doctrine similar to promissory estoppel, could not overcome a statute of frauds defense absent proof" } ]

[ { "docid": "22076969", "title": "", "text": "F.3d at 1322-23; United States v. Nilsen, 967 F.2d 539, 546 (11th Cir.1992). B. Post-Booker As we all now know, Booker made the guidelines advisory. District courts still must correctly calculate the advisory guidelines range, and we review any Booker-based departures outside that range for reasonableness in light of the § 3553(a) factors and the reasons stated by the district court for departing. See, e.g., Williams, 435 F.3d at 1354-55. As we recently explained, “Moreover, after it has decided the length of departure warranted by the substantial assistance motion, the district court is then obliged to take into account the advisory Guidelines range and the sentencing factors set forth in 18 U.S.C. § 3553(a) in fashioning a reasonable sentence.” McVay, 447 F.3d at 1356 (citing Booker, 543 U.S. at 259-60, 125 S.Ct. at 764-65) (first emphasis added). The § 3553(a) factors include: “ ‘(1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment; (4) the need to protect the public; and (5) the Guidelines range,’ ” id. at 1356-57 (citation omitted), as well as (6) the kinds of sentences available, 18 U.S.C. § 3553(a)(3); (7) the need to avoid sentencing disparities among similar defendants who have been found guilty, 18 U.S.C. § 3553(a)(6); and (8) the need to provide restitution to victims of the offense, 18 U.S.C. § 3553(a)(7). “[W]hen imposing a sentence falling far outside of the Guidelines range, based on the § 3553(a) factors, an extraordinary re- duetion must be supported by extraordinary circumstances.” McVay, 447 F.3d at 1357 (alteration, citation, and quotation marks omitted). On appeal, “ ‘[i]n reviewing the ultimate sentence imposed by the district court for reasonableness, we consider the final sentence, in its entirety, in light of the § 3553(a) factors.’ ” United States v. Valnor, 451 F.3d 744, 750 (11th Cir.2006) (quoting United States v. Thomas, 446 F.3d 1348, 1349 (11th Cir.2006)); see also United States v. Winingear, 422 F.3d 1241, 1245" } ]

[ { "docid": "23319313", "title": "", "text": "See Vallejo, 297 F.3d at 1168. Defendant Alalu has shown no error. J. Downward Departure and Downward Variance Defendant Alalu argues the district court should have granted his request for a downward departure on the basis that his offense level substantially overstated the seriousness of his offenses. He further argues the court abused its discretion by denying his request for a downward variance and that his sentence, albeit in the advisory guidelines range, is substantively unreasonable. We review our subject matter jurisdiction de novo. United States v. Winingear,. 422 F.3d 1241, 1245 (11th Cir.2005). We lack jurisdiction to review a district court’s discretionary refusal to grant a downward departure, unless the district court incorrectly believed it lacked the authority to depart from the guidelines range. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.2006). We will assume the sentencing court properly understood its authority absent a record indication to the contrary. Id. Here, we lack jurisdiction to review the district court’s discretionary refusal to grant Alalu’s request for a downward departure, as the district court did not express a belief that it lacked authority to depart. Id. As to a downward variance request, a district court must impose a sentence that is reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,169 L.Ed.2d 445 (2007). We review the reasonableness of a sentence under a deferential abuse-of-discretion standard. Id. at 41, 128 S.Ct. at 591. The party challenging the sentence bears the burden of establishing the sentence is unreasonable. United States v. Dean, 635 F.3d 1200, 1203-04 (11th Cir. 2011). We examine whether a sentence is substantively reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The § 3553(a) factors to be considered by a sentencing court include, among others: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment" }, { "docid": "22176434", "title": "", "text": "then indicated that it had “reviewed the Presentence Report factual findings and ha[d] considered the sentencing guideline applications.” Id. The district court accepted those findings and sentenced Mr. Lopez-Flores to 46 months’ imprisonment — the bottom of the Guidelines range. The district court made no reference to the non-Guidelines sentencing factors in 18 U.S.C. § 3553(a). Mr. Lopez-Flores appeals his sentence on the ground that it was unreasonable because the district court did not explain its reasoning under § 3553(a) for imposing the sentence. II. DISCUSSION 1. Booker In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that mandatory application of the United States Sentencing Guidelines violated the Sixth Amendment. By striking down 28 U.S.C. § 3553(b)(1) (the court “shall” impose a sentence within the Guidelines range), and 28 U.S.C. § 3742(e) (de novo appellate review), id. at 245, 125 S.Ct. 738, the Court made the Guidelines but one factor among others to be considered at sentencing. In § 3553(a), entitled “Factors to be considered in imposing a sentence,” only paragraphs (4) and (5) refer to the Guidelines or the Sentencing Commission. Booker said that “[sjection 3553(a) remains in effect,” 543 U.S. at 261, 125 S.Ct. 738, so the factors listed in paragraphs (1), (2), (3), (6), and (7) also play a role. As stated by the Court: [T]he [Federal Sentencing] Act ... requires judges to take account of the Guidelines together with other sentencing goals ... [, including] the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims, ... And the Act ... requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care. Id. at 259-60, 125 S.Ct. 738. After Booker a sentence, rather than having to comply with the Guidelines, must be reasonable. See id. at 261, 125 S.Ct. 738. We require reasonableness in two respects — “the length of the sentence, as" }, { "docid": "22832271", "title": "", "text": "offense prior to committing the second offense).” § 4A1.2 cmt. n. 3 (2004). The Note 3 commentary in the 1990 version of the guidelines also does not contain the “otherwise” qualifier that is present in the 2004 version of the guidelines that applies to this ease. Compare U.S.S.G. § 4A1.2 cmt. n. 3 (2004), with U.S.S.G. § 4A1.2 cmt. n. 3 (1990). “When it comes to the interpretation of the guidelines, ‘Commentary and Application Notes of the Sentencing Guidelines are binding on the courts unless they contradict the plain meaning of the text of the Guidelines.’ ” United States v. Lebovitz, 401 F.3d 1263, 1269 n. 3 (11th Cir.2005) (quoting United States v. Murrell, 368 F.3d 1283, 1288 n. 4 (11th Cir.2004)). We are bound by the § 4A1.2 Note 3 commentary in the 2004 guidelines because it does not contradict the plain meaning of § 4A1.2. That commentary clearly means that where, as here, a defendant is sentenced simultaneously for offenses separated by an intervening arrest, the cases are not related under § 4A1.2. III. Finally, Wilks contends that the application of the U.S.S.G. § 4B1.1 and 18 U.S.C.A. § 924(e)(1) enhancements to his sentence resulted in an unreasonable sentence under Booker. We disagree. After Booker, we review a defendant’s sentence for “unreasonableness” in the context of the § 3553(a) factors. See Booker, 543 U.S. at 264, 125 S.Ct. at 767; United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.2005). Section 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the advisory guidelines range; (8) the need to avoid unwanted sentencing disparities; and (9) the need to provide restitution to victims. See 18 U.S.C. § 3553(a). “Review for reasonableness is" }, { "docid": "10627066", "title": "", "text": "ways”) (emphasis added). Accordingly, we hold that the district court correctly applied the three-level § 3A1.2 enhancement. B. Reasonableness of the Variance Cousins also contends that his sentence is unreasonable because the district judge failed adequately to explain why the upward variance of two months was “sufficient, but not greater than necessary,” to comply with the purposes of 18 U.S.C. § 3553(a). In reviewing sentencing decisions, we apply “a practical standard of review ... familiar to appellate courts: review for ‘unreasonable[ness].’ ” United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Guided by Booker’s principle of meaningful appellate review for reasonableness and its respect for the sentencing goals articulated in § 3553(a), we “may conclude that a sentence is unreasonable when the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” United States v. Richardson, 437 F.3d 550, 553 (6th Cir.2006) (internal citation and quotation marks omitted) (quoting United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005)). Section 3553(a) requires a sentencing court to consider the following factors: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant”; (2) “the need for the sentence ... to reflect the seriousness of the offense, to promote respect for the law, ... to provide just punishment,” to deter similar criminal conduct, “to protect the public from further crimes of the defendant,” and to provide the defendant with training, medical care, or other treatment; (3) “the kinds of sentences available”; (4) the applicable advisory Guidelines range; (5) relevant policy statements by the Sentencing Commission; (6) “the need to avoid unwarranted sentencing] disparities”; and (7) “the need to provide restitution to ... victims.” 18 U.S.C. § 3553(a). A sentence within the Guidelines range triggers a rebuttable presumption of reasonableness, see Richardson, 437 F.3d at 553-54, but a court imposing such a sentence must nonetheless articulate its reasoning with sufficient specificity to permit meaningful appellate" }, { "docid": "22134108", "title": "", "text": "Talley, 431 F.3d 784 (11th Cir.2005); United States v. Scott, 426 F.3d 1324 (11th Cir.2005); United States v. Winingear, 422 F.3d 1241 (11th Cir.2005). Second, although Booker excised the standards of review in 18 U.S.C. § 3742(e), the Supreme Court explained that “the [Federal Sentencing] Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a)),” and cited 18 U.S.C. § 3742(a). United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 (2005) (instructing appellate courts to review a sentence for “unreasonableness” in light of the factors set forth in § 3553(a)). Although the Supreme Court in Booker did not identify which provision of § 3742(a) provided for appeals for “unreasonableness,” we conclude that a post-Booker appeal based on the “unreasonableness” of a sentence, whether within or outside the advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of law pursuant to § 3742(a)(1). See United States v. Frokjer, 415 F.3d 865, 875 & n. 3 (8th Cir.2005) (holding that Booker did not alter the rule that a district court’s discretionary decision not to depart downward is unreviewable, but noting that, after Booker, the court will “review a defendant’s argument that even a sentence within the advisory guideline range is ‘unreasonable’ with regard to the factors set forth in 18 U.S.C. § 3553(a), and an unreasonable sentence would be imposed ‘in violation of law’ within the meaning of § 3742(a)”) (citation omitted). Thus, this Court has jurisdiction under § 3742(a)(1) to review sentences for unreasonableness. B. Reasonableness Having determined that we have jurisdiction, we now consider Martinez’s reasonableness challenge to his sentence. To do so, we review Martinez’s final sentence, in its entirety, for unreasonableness in light of the factors in § 3553(a). See Win-ingear, 422 F.3d at 1245 (“We do not apply the reasonableness standard to each individual decision made during the sentencing process; rather, we review the final sentence for reasonableness.”). We easily conclude that Martinez’s 87-month sentence" }, { "docid": "22441367", "title": "", "text": "finding of guilty, any judge regularly sitting in or assigned to a court may complete the court’s duties if the judge who presided at trial cannot perform those duties because of absence, death, sickness, or other disability.” Fed.R.Crim.P. 25(b)(1). Because Judge Hobbs became absent at the time of sentencing, reassignment of the ease to Judge Thompson was proper under Rule 25. Furthermore, Judge Thompson not only ruled on pretrial motions in Dowd’s case, he read the trial transcripts and the transcripts of all later proceedings before Judge Hobbs. See United States v. Dowd, 385 F.Supp.2d 1240, 1242-43 (M.D.Ala.2005). Accordingly, Judge Thompson was sufficiently familiar with Dowd’s trial to sentence him. See United States v. Caraza, 843 F.2d 432, 437 (11th Cir.1988). C. Reasonableness Finally, Dowd argues that his 305-month total sentence was “overkill” and was unreasonable under 18 U.S.C. § 3553. Dowd contends that because he is over sixty-five years old, a sentence for twenty-five years’ imprisonment is “greater than necessary to achieve the purposes of sentencing.” See 18 U.S.C. § 3553(a)(2). Dowd also emphasizes that he suffered through a difficult childhood and upbringing. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court, in determining a reasonable sentence, must consider the correctly calculated sentencing range under the advisory guidelines and the factors set forth in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005). Among the factors that a district court should consider at sentencing are the nature and circumstances of the offense, the history and characteristics of the defendant, the need for adequate deterrence and protection of the public, the pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(l)-(7). “Review for reasonableness is deferential ... and when the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the]" }, { "docid": "22074493", "title": "", "text": "correctly interpreted and applied the Guidelines to calculate the appropriate advisory Guidelines range.’ ” United States v. McVay, 447 F.3d 1348, 1353 (11th Cir.2006) (quoting United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.2006) (internal citation omitted)). “It is only after a district court correctly calculates the Guidelines range, which it still must do after Booker, that it may consider imposing a more severe or more lenient sentence.” Id. “When we review a sentence for reasonableness, we do not, as the district court did, determine the exact sentence to be imposed.” Talley, 431 F.3d at 788. A “district court may impose a sen-fence that is either more severe or lenient than the sentence we would have imposed, but that sentence must still be reasonable.” Id. Our “[r]eview for reasonableness is deferential,” and “the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” Id. Again, Valnor faced a Guidelines sentencing range of 15 to 21 months’ imprisonment based on an adjusted base offense level of 14 and a criminal history category I. After considering and hearing argument on the § 3553(a) factors, the district court concluded that a 15 to 21 months’ sentence, as derived from the advisory Guidelines, failed to properly accommodate the statutory goals of sentencing embodied in 18 U.S.C. § 3553(a). Specifically, the district court was troubled that a 15 to 21 months’ sentence would fail to adequately deter or to protect the public from future crimes. Accordingly, the district court settled at a 42-month sentence before considering, and ultimately granting, the government’s substantial-assistance motion under § 5K1.1. The district court then imposed an ultimate sentence of 28 months’ imprisonment. We consider the reasonableness of that sentence today. In determining whether a sentence is reasonable, we are guided by the factors as set forth in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 261, 125 S.Ct. 738; Winingear, 422 F.3d at 1246. These factors include: (1) the nature and circumstances of the offense and the history and characteristics" }, { "docid": "22202176", "title": "", "text": "go-fast vessel, and was compensated only $3,000 for his participation; and (3) he was a first-time, non-violent offender. Bonilla also argues that his 108-month sentence is unreasonable because the district court suggested at his initial sentencing hearing that a 96-month sentence would have been imposed if the Guidelines had not been in place. Pursuant to the Supreme Court’s instructions in Booker, we review a district court’s sentence, imposed after consulting the Guidelines and considering the factors set forth at § 3553(a), for reasonableness. Booker, 543 U.S. at 264-65, 125 S.Ct. 738; United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.2006) (“Under Booker, we review a defendant’s ultimate sentence for reasonableness.”). Some of the § 3553(a) factors include the nature and circumstances of the offense, the history and characteristics of the defendant, the need for adequate deterrence and protection of the public, pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a). The reasonableness review is “deferential” and focuses on whether the sentence imposed fails to achieve the purposes of sentencing as stated in § 3553(a). United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). Moreover, we recognize that a range of reasonable sentences exists from which the district court may choose. Id. “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” Id. Prior to imposing sentence, the district court heard Bonilla’s mitigating circumstances and considered his apology. These items all concerned “the nature and circumstances of the offense and the history and characteristics of the defendant” within the meaning of § 3553(a)(1). In imposing sentence, the district court expressly noted the seriousness of the offense, see § 3553(a)(2) (discussing factors including the need for the sentence imposed “to reflect the seriousness of the offense”). Finally, the parties’ arguments and the PSI’s calculations outlined “the kinds of sentences available,” as discussed in § 3553(a)(3), and the government noted that Bonilla was receiving a much lower sentence than his co-defendants had, see" }, { "docid": "22368044", "title": "", "text": "enhancement. The court pointed out its own sentencing record post -Booker, noting it rarely ventured to impose a sentence outside the Guidelines, but it could not “in good conscience” sentence Williams to 188 months’ imprisonment because it was unreasonable. The court sentenced Williams to 90 months’ imprisonment and 4 years’ supervised release. II. STANDARD OF REVIEW “ ‘The district court’s interpretation of the [Sentencing [Gjuidelines is subject to de novo review on appeal, while its factual findings must be accepted unless clearly erroneous.’ ” United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir.2005) (citations omitted). Under Booker, we review a defendant’s ultimate sentence for reasonableness. See Booker, 125 S.Ct. at 765-66. III. DISCUSSION Before deciding whether a sentence is reasonable, we first determine whether the district court correctly interpreted and applied the Guidelines to calculate the appropriate advisory Guidelines range. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005) (noting “the district court remains obliged to ‘consult’ and ‘take into account’ the Guidelines in sentencing”). “After it has made this calculation, the district court may impose a more severe or more lenient sentence as long as the sentence is reasonable.” Id. at 1179. We are required “to determine whether the sentence imposed by the district court was reasonable in the context of the factors outlined in [18 U.S.C. § 3553(a) ].” United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.2005). “ ‘Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.’ ” Id. (quoting Booker, 125 S.Ct. at 766). “These factors include the available sentences, the applicable Guideline range, the nature and circumstances of the offense, and the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, and provide the defendant with needed medical care.” Id. Further, a laundry list of § 3553(a) factors is not required because “nothing in Booker or elsewhere requires the district court to state" }, { "docid": "22409395", "title": "", "text": "impose a more severe or more lenient sentence, as long as it is reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir.2005). The relevant § 3553(a) factors are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed ... [treatment] ...; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range ...; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a); see also Booker, 543 U.S. at 260-61, 125 S.Ct. 738. As we have observed, “nothing in Booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005). The record does not support Dorman’s contention that his sentence is unreasonable. Rather, the district court considered the § 3553(a) factors, accurately calculated the Guidelines range, and sentenced Dor-man within that range. See Scott, 426 F.3d at 1330. Despite the district court’s failure to explicitly articulate that it had considered the § 3553(a) factors, by virtue of the court’s consideration of Dorman’s objections and his motion for a downward departure, the court did, in fact, consider a number of the sentencing factors: (1) the court’s review of the amount of drugs attributable to Dorman implicated the nature and circumstances of the offense, 18 U.S.C. § 3553(a)(1); (2) the court’s observation that Dorman had continuously committed criminal activity each time he was released from prison concerned the need for the sentence imposed to afford" }, { "docid": "6067932", "title": "", "text": "1024. 5. Sentencing Parker challenges his sentence of 327 months imprisonment, arguing that the district court misapplied the Sentencing Guidelines. Because Parker does not raise a Sixth Amendment argument on appeal, we do not consider whether United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Booker) affects his sentence. ‘While [Parker’s] failure to ... present ... [a] Booker [error] prevents our review of [a] Sixth Amendment argument, we recognize that we are still obliged to apply a constitutional standard of review on appeal.” United States v. Cramer, 396 F.3d 960, 965 n. 4 (8th Cir.2005) (Cramer). After Booker, “[w]e review the sentence imposed for unreasonableness, judging it with regard to the factors in 18 U.S.C. § 3553(a).” Id. at 965. Thus, in deciding whether a sentence is unreasonable, we will consider the applicable offense level, criminal history category, and the resulting guidelines range. 18 U.S.C. § 3553(a)(4). We also will consider, among other things, the “nature and circumstances of the offense and the history and characteristics of the defendant,” § 3553(a)(1), and the “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, ... to provide just punishment for the offense[,] to afford adequate deterrence to criminal conduct!, and] to protect the public from further crimes of the defendant.” Id. § 3553(a)(2). The presentence report (PSR) calculated Parker’s base offense level at 32, based on the jury’s finding of a drug quantity of more than one kilogram but less than three kilograms of heroin. The PSR recommended a two-point enhancement in the offense level for possession of a firearm under U.S.S.G. § 2Dl.l(b)(l). The PSR calculated Parker’s criminal history as category III based on a 1983 conviction for possession of a firearm and the 1986 conviction for possession of heroin with the intent to distribute. The PSR noted four other adult felony convictions dating from 1974, which could not be counted under § 4A1.2 because they were more than fifteen years old. The guidelines range was 188 to 235 months imprisonment, but because the conspiracy involved" }, { "docid": "22441368", "title": "", "text": "that he suffered through a difficult childhood and upbringing. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court, in determining a reasonable sentence, must consider the correctly calculated sentencing range under the advisory guidelines and the factors set forth in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005). Among the factors that a district court should consider at sentencing are the nature and circumstances of the offense, the history and characteristics of the defendant, the need for adequate deterrence and protection of the public, the pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(l)-(7). “Review for reasonableness is deferential ... and when the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” Id. The district court sentenced Dowd to 221 months’ imprisonment for Counts One and Twenty-Nine, in the middle of the guidelines range of 188 to 235 months. The consecutive sentence of 84 months imposed for Count Two was required by statute. See 18 U.S.C. § 924(c)(1)(A); 18 U.S.C. § 924(c)(l)(D)(ii); Rahim, 431 F.3d at 757. Although Dowd’s sentence is substantial, he is a career armed criminal with nine prior felony convictions. While it is true that Dowd is over sixty-five years old, it is also undeniable that Dowd committed a violent felony at that age. See also U.S.S.G. § 5H1.1 (stating that while “[a]ge may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration,” age “is not ordinarily relevant in determining whether a departure is warranted”). In sentencing Dowd, the district court considered the factors Dowd emphasizes on appeal, as" }, { "docid": "22832272", "title": "", "text": "III. Finally, Wilks contends that the application of the U.S.S.G. § 4B1.1 and 18 U.S.C.A. § 924(e)(1) enhancements to his sentence resulted in an unreasonable sentence under Booker. We disagree. After Booker, we review a defendant’s sentence for “unreasonableness” in the context of the § 3553(a) factors. See Booker, 543 U.S. at 264, 125 S.Ct. at 767; United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.2005). Section 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the advisory guidelines range; (8) the need to avoid unwanted sentencing disparities; and (9) the need to provide restitution to victims. See 18 U.S.C. § 3553(a). “Review for reasonableness is deferential.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). “[Nothing in Booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir.2005) (stating that post-Booker district courts are not required to conduct an accounting of every § 3553(a) factor and explain how each factor played a role in the sentencing decision). The party challenging a sentence bears the burden of establishing unreasonableness in light of the § 3553(a) factors and the record established in the district court. Talley, 431 F.3d at 788. The district court stated that it had considered the § 3553(a) factors and the advisory guidelines range in determining Wilks’ sentence. It explained its concerns about the seriousness of the offense, Wilks’ significant criminal history, and the need to deter future criminal conduct. The dis trict court also took into" }, { "docid": "22074492", "title": "", "text": "738, 160 L.Ed.2d 621 (2005), a district court, in determining a reasonable sentence, must consider the correctly calculated sentencing range under the Guidelines and the factors set forth in 18 U.S.C. § 3553(a). See United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005). We review a district court’s interpretation of the Guidelines de novo and its factual findings for clear error. See United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir.), cert. denied, — U.S. -, 126 S.Ct. 812, 163 L.Ed.2d 639 (2005). “In reviewing the ultimate sentence imposed by the district court for reasonableness, we consider the final sentence, in its entirety, in light of the § 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1349 (11th Cir.2006) (citing United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.2005) (“We do not apply the reasonableness standard to each individual decision made during the sentencing process; rather, we review the final sentence for reasonableness.”)). “Before we conduct a reasonableness review of the ultimate sentence imposed, hve first determine whether the district court correctly interpreted and applied the Guidelines to calculate the appropriate advisory Guidelines range.’ ” United States v. McVay, 447 F.3d 1348, 1353 (11th Cir.2006) (quoting United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.2006) (internal citation omitted)). “It is only after a district court correctly calculates the Guidelines range, which it still must do after Booker, that it may consider imposing a more severe or more lenient sentence.” Id. “When we review a sentence for reasonableness, we do not, as the district court did, determine the exact sentence to be imposed.” Talley, 431 F.3d at 788. A “district court may impose a sen-fence that is either more severe or lenient than the sentence we would have imposed, but that sentence must still be reasonable.” Id. Our “[r]eview for reasonableness is deferential,” and “the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” Id. Again, Valnor faced a Guidelines sentencing range of 15 to 21 months’" }, { "docid": "22813347", "title": "", "text": "argues that his sentence was substantively unreasonable under the § 3553(a) factors. In support of that argument, he asserts that the nature and circumstances of his offense indicate that his sentence is too severe in light of the relatively small amount of actual loss caused. Agbai contends that the amount of actual loss was only $16,400.34, and thus, the vast majority of the loss was intended loss that never materialized. The inclusion of the entire amount of intended loss in the advisory Guideline calculation resulted in a 12-level increase for Agbai. He also maintains that: (1) the history and characteristics of his life demonstrate that the sentence is unreasonable because his life has been, for the most part, honorable; (2) the need to promote respect for the law and provide just punishment does not warrant the sentence imposed; (3) the need for deterrence and to protect the public can be met by a much shorter sentence; (4) the Guidelines failed to yield a reasonable sentence; (5) the need to avoid unwarranted sentencing disparities would be served by a sentence below the Guideline range because his co-defendant, Tate, who already had numerous felony convictions, received a shorter sentence than Agbai; and (6) the need for restitution would be met by a shorter sentence because the prison term imposed will make it more difficult for him to pay the amount of restitution ordered. We review the final sentence imposed by the district court for reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.2005) (per curiam). “Our review for reasonableness is deferential.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.2006) (alterations, internal quotations, and citation omitted). Unreasonableness may be procedural, when the district court’s procedure does not follow Booker's requirements, or substantive. See Hunt, 459 F.3d at 1182 n. 3. In Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2468-69, 168 L.Ed.2d 203 (2007), the Supreme Court considered, inter alia, what constitutes a legally suffi cient statement of reasons by the district court for imposition of a sentence under 18 U.S.C. § 3553(c). The Court noted that" }, { "docid": "22379405", "title": "", "text": "3553(a). Again, in determining whether a sentence is reasonable, we are guided by the factors in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 261, 125 S.Ct. 738; Winingear, 422 F.3d at 1246. These factors include the following: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a). Although sentencing courts must be guided by these factors, “nothing in Booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir.2005) (stating that, post -Booker, district courts need not conduct an accounting of every § 3553(a) factor and expound on how each factor played a role in the sentencing decision). Here, we readily conclude that Thomas has not met his burden to show error “in the light of both [the] record and the factors in section 3553(a).” Talley, 431 F.3d at 788. At sentencing, the district court heard defense counsel’s argument in support of mitigation and Thomas’s statement of remorse, and noted Thomas’s letter of apology to the court. These items all concerned “the nature and circumstances of the offense and the history and characteristics of the defendant,” within the meaning of § 3553(a)(1), since they pertained to Thomas’s" }, { "docid": "22119023", "title": "", "text": "were prosecuted as part of this same investigation,” the circumstances surrounding the related convictions, and “sentences that are generally imposed for tax offenses.” Id. at 27. Campbell challenges several aspects of the sentences imposed by the district court. First, Campbell contends that the district court committed several errors in calculating the appropriate Guidelines range and settling on the sentences ultimately issued. Thus, Campbell contends, his sentences are procedurally unreasonable. Lastly, Campbell contends that the circumstances of this case render his sentences substantively unreasonable. “We review the sentence imposed by the district court for reasonableness.” United States v. Talley, 431 F.3d 784, 785 (11th Cir.2005). “Review for reasonableness is deferential. We must evaluate whether the sentence imposed by the district court fails to achieve the purposes of sentencing stated in section 3553(a).” Id. at 788. “We do not apply the reasonableness standard to each individual decision made during the sentencing process; rather, we review the final sentence for reasonableness.” United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.2005). “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both th[e] record and the factors in section 3553(a).” Talley, 431 F.3d at 788. We do not in this circuit presume reasonable a sentence within the properly calculated Guidelines range. See United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir.2006). Recently, however, the U.S. Supreme Court upheld other circuits’ decisions affording such a presumption, noting that a sentence, independently calculated by the district court in accordance with Booker, that falls within the properly calculated Guidelines range “significantly increases the likelihood that the sentence is a reasonable one.” Rita v. United States, 551 U.S. -, slip op. at 8 (June 21, 2007). “After Booker, a sentence may be reviewed for procedural or substantive unreasonableness.” Hunt, 459 F.3d at 1182 n. 3; see also United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A sentence may be procedurally unreasonable if “it is the product of a procedure that does not follow Booker's requirements, regardless of the actual sentence.”" }, { "docid": "22720409", "title": "", "text": "only under the guidelines but in Section ... 3553.” Scott timely appealed. On appeal, Scott does not raise any issue under U.S.S.G. § 5K2.0, and accordingly any challenge under that section is abandoned. See Lambrix v. Singletary, 72 F.3d 1500, 1506 n. 11 (11th Cir.1996). Thus, this appeal does not involve a challenge to the application of the Guidelines or the calculation of the applicable Guidelines range. Rather, this appeal involves only review for reasonableness of a 135-month sentence, which was within a correctly-calculated Guidelines range of 135-168 months’ imprisonment. II. DISCUSSION Before the United States Supreme Court’s decision in Booker, we reviewed departures from the mandatory Guidelines for reasonableness. See United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.2005) (citing pre-Booker cases). “That review required us to determine whether the sentence imposed by the district court was reasonable in the context of the factors outlined in [18 U.S.C. § ]3553(a).” Winingear, 422 F.3d at 1246. “Following Booker, these factors continue to guide our review: ‘Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.’ ” Winingear, 422 F.3d at 1246 (quoting Booker, 125 S.Ct. at 766). The factors in § 3553(a) include: (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment; (4) the need to protect the public; and (5) the Guidelines range. See 18 U.S.C. § 3553(a). On appeal, Scott argues that his sentence of 135 months’ imprisonment was unreasonable for several reasons, which we discuss in turn. A. The District Court Considered the § 8553(a) Factors Scott first argues that the district court failed to consider all of the reasons for a lesser sentence advanced by Scott. Scott contends that because the district court did not specifically mention the grounds for variance that Scott argued and did not specifically address" }, { "docid": "22747164", "title": "", "text": "sentencing unless clearly erroneous. United States v. Creech, 408 F.3d 264, 270 n. 2 (5th Cir.2005); see United States v. Milton, 147 F.3d 414, 421 (5th Cir.1998). Under United States v. Booker, we ultimately review a sentence for \"unreasonableness.\" 125 S.Ct. at 765. Though flexible, the reasonableness standard is not unbounded. Both a district court's post-Booker sentencing discretion and the reasonableness inquiry on appeal must be guided by the sentencing considerations set forth in 18 U.S.C. § 3553(a). Booker, 125 S.Ct. at 766. Those factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for- (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines (5) any pertinent policy statement ...; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a) (2000). Our post-Booker case law has recognized three different types of sentences under the advisory Guidelines regime. First, a sentencing court may exercise its discretion to impose a sentence within a properly calculated Guidelines range. In such a situation, we will \"infer that the judge has considered all the factors for a fair sentence . ., and it will be rare for a reviewing court to say such a sentence is `unreasonable.'\" United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). In United States v. Alonzo, this Court further clarified the deferential standard for reviewing sentences within a properly calculated Guideline range. 2006 WL 39119, at *2, 435 F.3d 551, 553-54 (5th Cir.2005)." }, { "docid": "22074491", "title": "", "text": "now considers the government’s ... motion for a downward departure. Thus, the district court explained, the starting point meant that “absent any motion for a downward departure, I would otherwise impose a sentence of forty-two months.” After hearing from the parties regarding Valnor’s cooperation, the court granted the government’s motion for downward departure, finding that Valnor had rendered substantial assistance to the United States. The court said that it had reviewed the advisory Guidelines range, as well as the factors contained in 18 U.S.C. § 3553(a), and had “departed above the advisory guideline range for the reasons previously stated,” to 42 months, which was “more than reasonable as a starting point for a crime of this seriousness, especially with respect to national security,” before deciding to depart downward based on Valnor’s substantial assistance. Ultimately, the court sentenced Valnor to a 28-month term of imprisonment followed by two years’ supervised release. Valnor then objected to the overall sentence, which the court overruled. This appeal followed. II. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court, in determining a reasonable sentence, must consider the correctly calculated sentencing range under the Guidelines and the factors set forth in 18 U.S.C. § 3553(a). See United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005). We review a district court’s interpretation of the Guidelines de novo and its factual findings for clear error. See United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir.), cert. denied, — U.S. -, 126 S.Ct. 812, 163 L.Ed.2d 639 (2005). “In reviewing the ultimate sentence imposed by the district court for reasonableness, we consider the final sentence, in its entirety, in light of the § 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1349 (11th Cir.2006) (citing United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.2005) (“We do not apply the reasonableness standard to each individual decision made during the sentencing process; rather, we review the final sentence for reasonableness.”)). “Before we conduct a reasonableness review of the ultimate sentence imposed, hve first determine whether the district court" } ]

[ { "docid": "6877225", "title": "", "text": "de novo. Rich, 992 F.2d at 505; United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc) (7-7 decision). Factual circumstances surrounding the consent may be important in determining the nature of the consent and how a reasonable officer would have understood that consent. Rich, 992 F.2d at 505. Beall was caught traveling under an assumed name and was nervous when speaking to the officers. Stewart knew Beall’s purpose because he asked Stewart if she was carrying any illegal drugs or weapons before asking to look at the bottle. This question establishes the object of the search. See Rich at 507. Because Stewart knew her deception was uncovered and that Beall was looking for illegal drugs, it is objectively reasonable to expect Beall to look in the bottle after being granted permission to look at the bottle. The search was within the scope of Stewart’s consent. II. Limitation of Cross-Examination of Government Witness. Stewart argues that the district court abused its discretion when it limited her examination of the Government’s only witness, Officer Beall, at her suppression hearing. Defense counsel questioned Beall on cross-examination during the Government’s case-in-chief and on direct examination dim-ing her own case-in-chief. The Confrontation Clause of the Sixth Amendment protects a defendant’s right to conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987). A trial court is given wide latitude in imposing reasonable restraints upon a defendant’s right to cross-examination. United States v. Alexius, 76 F.3d 642 (5th Cir.1996). We review the trial court’s restriction of the scope of cross-examination for abuse of discretion. Id. at 644. At the suppression hearing, the Government called Officer Beall as its only witness. On cross-examination and on direct examination during Appellant’s ease-in-chief, the district court prevented defense counsel from asking any questions prefaced by a reference to earlier testimony, and mistakenly considered questions repetitious which were not. (on cross-examination) Q. If I understand your testimony correctly, you said— C. Let’s don’t rehash his testimony. Just ask him questions about things he hasn’t already told you about. Q. Well, Judge" } ]

[ { "docid": "21246052", "title": "", "text": "Fourth Amendment protects”); United States v. Waupekenay, 973 F.2d 1533, 1536 (10th Cir.1992) (observing that the defendant had “a heightened expectation of privacy when he was within his trailer” because “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home”) (alternations and internal quotation marks omitted). Consensual searches constitute one exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Kimoana, 383 F.3d 1215, 1221 (10th Cir.2004). Consent may be obtained from the individual whose property is searched, or in certain instances, from a third party who possesses either actual authority or apparent authority to consent to the search. See United States v. Mat-lock, 415 U.S. 164, 169-72, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (discussing actual authority); Illinois v. Rodriguez, 497 U.S. 177, 186-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (discussing apparent authority); Kimoana, 383 F.3d at 1220-1223 (applying both doctrines). The government has the burden of proving that the consenting party had such authority. See United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990) (actual authority); Kimoana, 383 F.3d at 1222 (apparent authority). Here, the government maintains that Ms. Ricker had both actual and apparent authority to consent to the search of Mr. Cos’s apartment. We consider each argument in turn. 1. Actual Authority a. Matlock The Supreme Court’s decision in Mat-lock sets forth the test for actual authority. There, the Court held that a woman who jointly occupied with the defendant a bedroom in her mother’s house could validly consent to a search of that bedroom. The Court explained that “when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Matlock, 415 U.S. at 171, 94 S.Ct. 988. Under Matlock, “common authority” is not based" }, { "docid": "3498896", "title": "", "text": "an arrest warrant. Id. at 327, 110 S.Ct. 1093. A majority of our sister circuits that have considered the issue have expanded Buie to authorize protective sweeps even when officers have not entered a suspect’s home pursuant to an arrest warrant. See, e.g., United States v. Martins, 413 F.3d 139, 149-51 (1st Cir.2005); Leaf v. Shelnutt, 400 F.3d 1070, 1086-88 (7th Cir.2005); United States v. Gould, 364 F.3d 578, 581-87 (5th Cir.) (en banc), cert. denied, — U.S. -, 125 S.Ct. 437, 160 L.Ed.2d 317 (2004); United States v. Taylor, 248 F.3d 506, 513-14 (6th Cir.), cert. denied, 534 U.S. 981, 122 S.Ct. 414, 151 L.Ed.2d 315 (2001); United States v. Patrick, 959 F.2d 991, 996-97 (D.C.Cir.1992). These courts have generally reasoned that because “[t]he underlying rationale for the protective sweep doctrine is the principle that police officers should be able to ensure their safety when they lawfully enter a private dwelling,” there is no reason to distinguish between situations in which police enter pursuant to a warrant and those in which police are present through other lawful means. Leaf, 400 F.3d at 1087. But there is something less than a consensus. See United States v. Davis, 290 F.3d 1239, 1242 n. 4 (10th Cir.2002) (rejecting argument that warrantless entrance justified a protective sweep and emphasizing that a protective sweep “ ‘is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.’ ” (quoting Buie) (emphasis in Davis)); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir.2000) (holding that a protective sweep was improper, in part because at the time of the search, the defendant, “was not under arrest” (emphasis in original)). Although we do not decide this issue, we do note that when police have gained access to a suspect’s home through his or her consent, there is a concern that generously construing Buie will enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search of the home. As the Fifth Circuit, sitting en banc, recently recognized: [Protective sweeps following" }, { "docid": "21246051", "title": "", "text": "is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown.” Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1524, 164 L.Ed.2d 208 (2006) (alternations in original) (internal quotation marks omitted). “We have ... lived our whole national history with an understanding of [that adage].” Id.; see also Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (noting the “centuries-old principle of respect for the privacy of the home”). This court has often affirmed that view. See, e.g., United States v. McCullough, 457 F.3d 1150, 1163 (10th Cir.2006) (“ ‘It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.’ ”) (quoting Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)); United States v. Hatfield, 333 F.3d 1189, 1196 (10th Cir.2003) (stating that “privacy in the interior of a home and its curtilage are at the core of what the Fourth Amendment protects”); United States v. Waupekenay, 973 F.2d 1533, 1536 (10th Cir.1992) (observing that the defendant had “a heightened expectation of privacy when he was within his trailer” because “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home”) (alternations and internal quotation marks omitted). Consensual searches constitute one exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Kimoana, 383 F.3d 1215, 1221 (10th Cir.2004). Consent may be obtained from the individual whose property is searched, or in certain instances, from a third party who possesses either actual authority or apparent authority to consent to the search. See United States v. Mat-lock, 415 U.S. 164, 169-72, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (discussing actual authority); Illinois v. Rodriguez, 497 U.S. 177, 186-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (discussing apparent authority); Kimoana, 383 F.3d at 1220-1223 (applying both doctrines). The government has the burden of proving that the consenting" }, { "docid": "3745627", "title": "", "text": "for the stop.”); United States v. Pruitt, 174 F.3d 1215, 1221 (11th Cir.1999) (“[Additional ‘fishing expedition’ questions ... are simply irrelevant, and constitute a violation of Terry.”). A contrary rule, the Tenth Circuit reasoned, would effectively write Terry’s scope prong out of existence. See United States v. Holt, 264 F.3d 1215, 1228 & n. 3 (10th Cir.2001) (en banc). We never joined those circuits in categorically restricting the topic of officers’ questions during traffic stops. In fact, in one case, we held that an officer did not violate Terry by asking “a few” off-topic questions during a traffic stop, including “whether there was anything illegal inside [the automobile],” in the absence of any reasonable suspicion of illegal activity beyond the traffic violation. See United States v. Burton, 334 F.3d 514, 515 (6th Cir.2003). We took particular note that “the traffic stop took place ... [in a known] high-crime area ... at 11:30 p.m.” and that “[t]he record provide[d] no reason to suspect either that these questions were unusually intrusive or that asking them made this traffic stop any more coercive than a typical traffic stop.” Id. at 518-19. Other circuits went further, holding that officers could subject motorists to some degree of unrelated questioning during traffic stops as a matter of course. See, e.g., United States v. Childs, 277 F.3d 947, 949 (7th Cir.2002) (en banc); United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir.2001); United States v. Shabazz, 993 F.2d 431, 436 (5th Cir.1993); see also United States v. Garrido-Santana, 360 F.3d 565, 574-75 & n. 6 (6th Cir.2004) (recognizing a circuit split but declining to reach the issue). This circuit split was resolved in Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), in which the Supreme Court gave its imprimatur to wide-ranging questioning during a police detention. There, the police had entered a house to execute a valid search warrant for “deadly weapons and evidence of gang membership.” Id. at 95-96, 125 S.Ct. 1465. Although the police did not possess reasonable suspicion that anyone in the house was an illegal immigrant, an" }, { "docid": "8576214", "title": "", "text": "of all the circumstances.” United States v. Torres, 32 F.3d 225, 230-31 (7th Cir.1994) (citations omitted). In Torres, we stated the standard as follows: “what would the typical reasonable person have understood [the scope of consent to be] by the exchange between the officer and the suspect?” Id. (citation omitted). Along the same lines, we have repeatedly emphasized that a general consent form does not override a more explicit statement specifying the object of the search. See, e.g., United States v. Lemmons, 282 F.3d 920, 924 (7th Cir.2002) (“Although the consent form is probative of the voluntariness of [the defendant’s] consent, it helps little in determining its scope[,]” especially when the officer specified the object of the search.). While we review the district court’s legal conclusions de novo, we review its finding of fact for clear error. United States v. Robeles-Ortega, 348 F.3d 679, 681 (7th Cir. 2003) (citation omitted). As this court has recognized, “[g]overnment agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search.” United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir.1971); United States v. Berke, 930 F.2d 1219, 1222 n. 7 (7th Cir.1991); see Lemmons, 282 F.3d at 924; cf. United States v. Turner, 169 F.3d 84, 87 (1st Cir.1999). In Dichiarinte, we held that the personal papers of the defendant should have been suppressed. We found the police had exceeded the scope of the defendant’s consent to search his home for narcotics when they read and seized his personal papers. Id. at 130. The papers were not related to narcotics; rather, they implicated the defendant in tax fraud. Id. The officers exceeded the scope of the defendant’s consent when they went beyond what was necessary to determine if he had hidden narcotics among his personal papers and started to read the papers to determine whether they evidenced other illegal activity. Id. The instant case is quite different than Dichiarinte and similar cases that Breit relies upon. First, Breit signed a" }, { "docid": "19943859", "title": "", "text": "States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). Upon the officers’ entry, Jones and his associates surrendered to them without a struggle and no shots were fired. Jones was then handcuffed and made to sit on the edge of a bed. There is no indication in the record that Jones was mistreated or placed in an uncomfortable position, or that Agent Boucher, Agent Bunch, or anyone else brandished a weapon, made threatening gestures, or spoke threatening words during the interrogation. Considering the several countervailing factors outlined above, we find that the circumstances here were not so inherently coercive as to render Jones’s consent unknowing or involuntary, even when considered together with the officers’ failure to advise Jones of his right to refuse consent. Third, Jones claims that any valid consent he may have given was confined to the bedroom in which he had been placed, and did not extend to the kitchenette or the other rooms of the hotel suite. A search justified by consent will be deemed reasonable as long as it does not exceed the scope of the consent given. See United States v. Turner, 169 F.3d 84, 87 (1st Cir.1999). When determining the scope of consent, we apply a test of objective reasonableness: “ ‘[WJhat would the typical reasonable person have understood by the exchange between the officer and the subject?’ ” United States v. Meléndez, 301 F.3d 27, 32 (1st Cir.2002) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)). This inquiry requires an examination of the “overall context,” including “contemporaneous police statements and actions.” Turner, 169 F.3d at 87. As in past cases, we state no view on whether the scope of a given instance of consent is reviewed de novo or merely for clear error, as in the circumstances of the present case we would affirm under either standard. See Marshall, 348 F.3d at 286 (citing Meléndez, 301 F.3d at 32 (noting the split in our sister circuits on this question)); Turner, 169 F.3d at 87 n. 4 (same). Agent Boucher testified" }, { "docid": "14093335", "title": "", "text": "scope of her consent, as it was her burden to limit that scope.”) (emphasis added). We emphasize, nonetheless, that our decision is predicated upon the particular facts of this case, and in no sense represents a per se rule on computer searches. Affirmed. . The evidence is related in the light most favorable to the suppression ruling. See United States v. Martinez-Molina, 64 F.3d 719, 723 (1st Cir.1995). . The rationale relied upon by the district court appears somewhat problematic. If the Turner consent did enable a computer search, arguably the file labels therein would not have constrained the scope of the search. By analogy, for example, had Turner consented to the search of un locked containers on the premises, we doubt seriously whether his deceptive labeling ol an individual container (e.g., \"Flour”) would preclude a consensual search, provided the container was capable of holding whatever contraband was the target of the search. Since we affirm on other grounds, however, we need not rule on the district court rationale. . It was for the government to prove that the computer-file search was within the scope of the consent. See United States v. Schaefer, 87 F.3d 562, 569 (1st Cir.1996); United States v. Cruz Jimenez, 894 F.2d 1, 6 (1st Cir.1990). . Although divergent standards of review have emerged, compare United States v. Stewart, 93 F.3d 189, 192 (5th Cir.1996) (scope of consent reviewed de novo; underlying factual findings reviewed only for clear error), with United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir.1993) (scope of consent — a factual issue — reviewed only for clear error), we need not select at this juncture, since we would affirm under either standard. . Aggravated assault contains no implicit sexual-assault component, see Me.Rev.Stat. Ann. tit. 17-A, § 208, nor would the victim’s gender automatically give rise to such an inference. . This is not to suggest that stray incriminating evidence might not be discovered among the personal papers, diaries or computer files of someone who planned and committed an aggravated assault. Were such remote and speculative prospects ' sufficient, however, consensual searches" }, { "docid": "4223090", "title": "", "text": "illegal items might be stored and that an officer may search the same in a manner that is respectful of the containers and not destructive. United States v. Jackson, 381 F.3d 984, 988-89 (10th Cir.2004), cert. denied, 544 U.S. 963, 125 S.Ct. 1724, 161 L.Ed.2d 605 (2005). Finally, the government contends the defendants did not withdraw or limit their consent as shown by their failure to object to the package being unwrapped when the trooper asked them about its contents. “The Fourth Amendment typically requires that law enforcement agents obtain a warrant prior to conducting a search. A warrant is not required, however, when the defendant consents to the search.” Id. at 988 (internal citations omitted). “When law enforcement officers rely upon consent to justify a warrantless search, the scope of the consent determines the permissible scope of the search.” United States v. Marquez, 337 F.3d 1203, 1207 (10th Cir.2003). In measuring the scope of the consent, the court need not consider “whether the suspect would have wanted an officer to search a container that contained contraband. If such were the test, [courts] would be obliged to suppress the evidence in ... every ... case involving a defendant who did not wish to be caught transporting narcotics.” Marquez, 337 F.3d at 1208. Therefore, “the proper inquiry is whether it would be objectively reasonable for a law enforcement officer to conclude that a suspect’s general consent to search extends to a particular container in a car.” Id.; United States v. Brooks, 427 F.3d 1246, 1249 (10th Cir. 2005), cert. denied, 546 U.S. 1222, 126 S.Ct. 1449, 164 L.Ed.2d 147 (2006). The Supreme Court and the Tenth Circuit have held that general consent to search a particular area is reasonably understood to extend to a search of any container within that area which could contain the items being searched for unless the suspect indicates that he wishes to terminate or limit the search. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); United States v. Osage, 235 F.3d 518, 521 (10th Cir.2000). “A defendant’s failure to limit" }, { "docid": "23673572", "title": "", "text": "believed a 120-month sentence more appropriate than a within-guideline sentence. Given the discrepancy between the written judgment and the oral pronouncement, as well as the ambiguities in the oral explanation, we vacate the sentence and remand for resentencing. See United States v. Garza, 448 F.3d 294, 302 (5th Cir.2006). IV. There is also a clerical error. Garcia pleaded not guilty, and his guilt was determined by the court after a bench trial, but the judgment erroneously states that he pleaded guilty. On remand, the district court must correct the error. Fed. R.CrimP. 36; United States v. Powell, 354 F.3d 362, 371-72 (5th Cir.2003). In summary, the conviction is AFFIRMED. The sentence is VACATED and REMANDED for resentencing. . Section 841(a)(1) and (b)(1)(A) makes it unlawful knowingly or intentionally to \"possess with intent to ... distribute ... a controlled substance____ In the case of a violation ... involving ... 5 kilograms or more of ... cocaine ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.\" . Decisions by an equally divided en banc court are not binding precedent but only affirm the judgment by operation of law. Mendoza-Gonzalez, 318 F.3d at 667 n. 5; United States v. Knutson, 113 F.3d 27, 28 nn. 1, 6 (5tit Cir.1997). . See also United States v. Dominguez, No. 96-40367, 1996 WL 731574 (5th Cir. Dec. 3, 1996) (unpublished) (reasoning that unscrewing a sheet rock panel from a house ceiling to reveal a hidden crawl space, causing no property damage, was reasonable and thus within the scope of general consent to search the house); United States v. Ferrer-Montoya, 483 F.3d 565, 568-69 (8th Cir.2007); United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir.2004); United States v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir.2002); United States v. Zapata, 180 F.3d 1237, 1243 (11th Cir.1999); United States v. Torres, 32 F.3d 225, 231-32 (7th Cir.1994)." }, { "docid": "5130470", "title": "", "text": "was Crowder. After Newlin noticed ammunition in an ashtray, he asked McMullin whether there were firearms in the house. McMullin pointed to seven firearms lined up against the wall, and his aunt volunteered that a handgun was stashed in a desk drawer. Knowing that McMullin had a felony record, the deputy arrested him and seized the firearms. It is undisputed that there was valid consent by McMullin for Deputy Newlin to enter his home at the outset. Once consent is given, it may be withdrawn, but only by an “unequivocal act or statement.” United States v. Gray, 369 F.3d 1024, 1026 (8th Cir.2004) (expressions of impatience do not amount to an unequivocal statement of withdrawal); United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir.1993) (passively watching in silence as search was expanded not sufficient to withdraw consent); see also United States v. Sanders, 424 F.3d 768, 775 (8th Cir.2005) (repeated use of hands to block officer’s search of pockets demonstrated unequivocal withdrawal of consent). Newlin left the house only to go into the backyard to assist his partner who was attempting to arrest Crowder. In the yard McMullin incriminated himself which gave Newlin reason to talk to him further. McMullin made no objection to his returning inside, and Newlin’s reason for reentering was within the scope of the consent granted by McMullin which was to talk and ask questions. See United States v. Castellanos, 518 F.3d 965, 970 (8th Cir.2008) (distinguishing consent for officer merely to enter from consent to a search). Newlin’s reentry was thus a continuation of his consented presence in the house. The burden remained on McMullin to withdraw affirmatively and unequivocally his consent for Newlin to be inside his home. The district court found that McMullin never withdrew his consent — a factual finding that we review for clear error, see Gray, 369 F.3d at 1026-27, and I see none. To ascertain whether McMullin withdrew his consent, we ask what “the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct." }, { "docid": "12399178", "title": "", "text": "U.S. 177, 186-89, 110 S.Ct. 2793, 2800-01, 111 L.Ed.2d 148 (1990). Whether a person consented to a search is, as a general proposition, a matter of fact, and therefore is reviewed for clear error. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48; United States v. Zapata, 180 F.3d 1237, 1240-41 (11th Cir.1999); see also United States v. Blake, 888 F.2d 795, 798 (11th Cir.1989) (listing factors to consider when assessing volun-tariness of consent to a warrantless search, including the coerciveness of police procedures as well as the defendant’s custodial status, education, intelhgence, cooperation with police, awareness of his right to refuse consent and belief that no incriminating evidence will be found). “In conducting a search pursuant to a properly obtained, voluntary consent, ... the extent of the search must be confined to the terms of its authorization.” Blake, 888 F.2d at 798. In reviewing the district court’s denial of a motion to suppress, we must take the facts in the light most favorable to the Government. United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir.2002). Finally, the scope of a search based on consent may not exceed the scope of the given consent. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). “The standard for measuring the scope of ... consent ... is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the [individual giving the consent]?” Id.; Zapata, 180 F.3d at 1242. Obtaining valid consent when the property to be searched is controlled by more than one person is hardly a new situation for the Supreme Court or for the lower federal courts. In United States v. Matlock, the Supreme Court, after reviewing the long-established practice of the circuits, confirmed that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” 415 U.S. 164, 170, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Notably, in addressing how courts ought to determine whether an individual" }, { "docid": "20713089", "title": "", "text": "trial is forfeited (and subject to plain error review) rather than waived (and not subject to review at all). The Second, Third, Fourth, Fifth, Ninth, Tenth, and Eleventh Circuits apply waiver. See United States v. Walsh, 700 F.2d 846, 855-56 (2d Cir.1983); United States v. Karlin, 785 F.2d 90, 92-93 (3d Cir. 1986); United States v. Williams, 684 F.2d 296, 299-300 (4th Cir. 1982); United States v. Arky, 938 F.2d 579, 582 (5th Cir.1991) (per curiam); United States v. LeMaux, 994 F.2d 684, 689-90 (9th Cir. 1993); United States v. Gallup, 812 F.2d 1271, 1280 (10th Cir.1987); United States v. Siegel-man, 561 F.3d 1215, 1232 (11th Cir.2009), vacated on other grounds by — U.S.-, 130 S.Ct. 3542, 177 L.Ed.2d 1120 (2010). The Seventh Circuit applies the forfeiture rule, see United States v. Baldwin, 414 F.3d 791, 795 & n. 2 (7th Cir.2005), overruled on other grounds by United States v. Parker, 508 F.3d 434 (7th Cir.2007), and the Sixth Circuit has held that \"absent an explicit waiver, the statute of limitations presents a bar to prosecution that may be raised for the first time on appeal,” United States v. Crossley, 224 F.3d 847, 858 (6th Cir.2000). The Eighth and D.C. Circuits apparently have not squarely addressed whether failure to raise the statute of limitations as a defense before or at trial is treated as waiver or forfeiture. See United States v. Soriano-Hernandez, 310 F.3d 1099, 1103-04 (8th Cir. 2002) (holding that a statute of limitations defense is waived by a guilty plea); United States v. Wilson, 26 F.3d 142, 155-56 (D.C.Cir. 1994) (holding that a statute of limitations defense may be waived knowingly, intelligently, and voluntarily). In this case the government has not argued that we should treat Franco-Santiago's argument under the statute of limitations as waived rather than forfeited. We follow our precedent and review for plain error. See United States v. Thurston, 358 F.3d 51, 63 (1st Cir.2004), vacated on other grounds by 543 U.S. 1097, 125 S.Ct. 984, 160 L.Ed.2d 988 (2005); United States v. O’Bryant, 998 F.2d 21, 23 & n. 1 (1st Cir. 1993). ." }, { "docid": "3745628", "title": "", "text": "traffic stop any more coercive than a typical traffic stop.” Id. at 518-19. Other circuits went further, holding that officers could subject motorists to some degree of unrelated questioning during traffic stops as a matter of course. See, e.g., United States v. Childs, 277 F.3d 947, 949 (7th Cir.2002) (en banc); United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir.2001); United States v. Shabazz, 993 F.2d 431, 436 (5th Cir.1993); see also United States v. Garrido-Santana, 360 F.3d 565, 574-75 & n. 6 (6th Cir.2004) (recognizing a circuit split but declining to reach the issue). This circuit split was resolved in Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), in which the Supreme Court gave its imprimatur to wide-ranging questioning during a police detention. There, the police had entered a house to execute a valid search warrant for “deadly weapons and evidence of gang membership.” Id. at 95-96, 125 S.Ct. 1465. Although the police did not possess reasonable suspicion that anyone in the house was an illegal immigrant, an Immigration and Naturalization Service officer accompanied the police during the search. The house’s occupants were lawfully detained while the police executed the warrant. While the search was being carried out, the INS officer asked the detained occupants various immigration-related questions. Id. at 96, 125 S.Ct. 1465. A unanimous Court reversed the appellate court’s holding that this off-topic questioning violated the Fourth Amendment, focusing on the fact that the questioning did not prolong the detention: [The appellate court’s] holding, it appears, was premised on the assumption that the officers were required to have independent reasonable suspicion in order to question Mena concerning her immigration status because the questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have “held repeatedly that mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). “[E]ven when officers have no basis for suspecting a particular individual, they may generally" }, { "docid": "23218483", "title": "", "text": "law are subject to de novo review, but factual findings are reviewed only for clear error. United States v. Valadez, 267 F.3d 395, 397 (5th Cir.2001). The scope of consent is a question of law. United States v. Rich, 992 F.2d 502, 505 (5th Cir.1993). However, the factual circumstances surrounding the consent may be instructive. “[Wjhere the judge bases a finding of consent on the oral testimony at a suppression hearing, the clearly erroneous standard is particularly strong since the judge had the opportunity to observe the demeanor of the witnesses.” United States v. Davis, 61 F.3d 291, 299 (5th Cir.1995) (quoting United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.1993)). B. The Scope of Consent Mendoza does not dispute the district court’s finding that he consented to the agents’ requests to “look in” the truck. Instead, he argues that the search of the cardboard box inside of the trailer exceeded the scope of his consent. 1. When the government relies upon consent as the basis for a warrantless search, “they have no more authority than they have apparently been given by the consent.” Wayne R. LaFave, Search and Seizure § 8.1(c) (3d ed. 1996 & Supp. 2003). Under the Fourth Amendment, “[t]he standard for measuring the scope of a suspect’s consent ... is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). “The question is not to be determined on the basis of the subjective intentions of the consenting party or the subjective interpretation of the searching officer.” LaFave, Search & Seizure § 8.1. Although objective reasonableness is a question of law, the factual circumstances are highly relevant when determining what the reasonable person would have believed to be the outer bounds of the consent that was given. See United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc) (7-7 decision). The terms of the search’s authorization were simple. At the initial inspection area, Ramos asked Mendoza if" }, { "docid": "21404387", "title": "", "text": "—, 111 S.Ct. at 1804 (citing Illinois v. Rodriguez, 497 U.S. 177, 183-84, 110 S.Ct. 2793, 2798-2802, 111 L.Ed.2d 148 (1990)). Objective reasonableness is a question of law that is reviewed de novo. United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc) (7-7 decision); United States v. Harrison, 918 F.2d 469, 473 (5th Cir.1990). The factual circumstances surrounding the consent may be important in determining the nature of the consent and how a reasonable officer would have understood the consent. Ibarra, 965 F.2d at 1357. The trial court’s factual findings must be accepted unless they are “clearly erroneous or influenced by an incorrect view of the law.” United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990); United States v. Lanford, 838 F.2d 1351, 1354 (5th Cir.1988). III The government does not dispute any of the district court’s factual findings, but instead contests the court’s conclusion as to how a reasonable person would understand the trooper’s request to “look in” Rich’s pickup. The government relies principally upon Florida v. Jimeno. In that case,' the police officer overheard the defendant, Jimeno, arranging what seemed to be a drug transaction over a public telephone. The officer followed the defendant’s car, and stopped him after he committed a traffic violation. The officer then told the defendant that he had reason to suspect that narcotics were in the car, and requested Jimeno’s permission to search the car. Jimeno consented to the search, and the officer found a kilogram of cocaine in a closed paper bag that was located on the passenger side floorboard. Jimeno argued that the scope of his consent to search the car did not extend to the search of a closed paper bag found within the car. The Supreme Court disagreed, holding that “it was objectively reasonable for the police to conclude that the generai consent to search respondent’s car included consent to search containers within that car which might bear drugs.” Jimeno, — U.S. at —, 111 S.Ct. at 1804. The government argues that in" }, { "docid": "23218484", "title": "", "text": "authority than they have apparently been given by the consent.” Wayne R. LaFave, Search and Seizure § 8.1(c) (3d ed. 1996 & Supp. 2003). Under the Fourth Amendment, “[t]he standard for measuring the scope of a suspect’s consent ... is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). “The question is not to be determined on the basis of the subjective intentions of the consenting party or the subjective interpretation of the searching officer.” LaFave, Search & Seizure § 8.1. Although objective reasonableness is a question of law, the factual circumstances are highly relevant when determining what the reasonable person would have believed to be the outer bounds of the consent that was given. See United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc) (7-7 decision). The terms of the search’s authorization were simple. At the initial inspection area, Ramos asked Mendoza if he could “take a look in the back.” Mendoza replied simply, “Okay.” At the secondary inspection area, when Lopez asked Mendoza if he could “take a look” inside the trailer, Mendoza said, “Yes.” Law enforcement officials are not required to separately request permission to search each container within a vehicle for which they have received consent to search. Jimeno, 500 U.S. at 303, 111 S.Ct. 1825. Mendoza chose not to place any explicit limitations in his response to their general request, which, in this Circuit, is evidence of general consent. See United States v. Crain, 33 F.3d 480, 484 (5th Cir.1994). As we have stated in the past, “the defendant, as the individual ‘knowing the contents of the vehicle,’ has the ‘responsibility to limit the scope of the consent.’ ” United States v. McSween, 53 F.3d 684, 688 (5th Cir.1995)(quoting Rich, 992 F.2d 502, 507 (5th Cir.1993)). At the time Mendoza consented to a search of the trailer, he knew that the brown cardboard boxes contained marijuana. “ ‘[I]f he deemed it necessary to do" }, { "docid": "21404386", "title": "", "text": "in refusing to admit the relevant evidence of Rich’s criminal history. We now reverse the district court’s decision to suppress the evidence. II Two distinct inquiries must be undertaken in analyzing an individual’s consent to a search: whether his consent was voluntarily given, and whether the search was within the scope of his consent. United States v. Coburn, 876 F.2d 372, 374 (5th Cir.1989). Because the district court determined that the scope of the consent was exceeded, he did not rule on the voluntariness of the defendant’s consent. Thus, our review is limited to the scope of the defendant’s consent. The Supreme Court has instructed us on the standard for determining the scope of consent. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness....” Florida v. Jimeno, — U.S. —, —, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). The key inquiry focuses on what the “typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Jimeno, — U.S. at —, 111 S.Ct. at 1804 (citing Illinois v. Rodriguez, 497 U.S. 177, 183-84, 110 S.Ct. 2793, 2798-2802, 111 L.Ed.2d 148 (1990)). Objective reasonableness is a question of law that is reviewed de novo. United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc) (7-7 decision); United States v. Harrison, 918 F.2d 469, 473 (5th Cir.1990). The factual circumstances surrounding the consent may be important in determining the nature of the consent and how a reasonable officer would have understood the consent. Ibarra, 965 F.2d at 1357. The trial court’s factual findings must be accepted unless they are “clearly erroneous or influenced by an incorrect view of the law.” United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990); United States v. Lanford, 838 F.2d 1351, 1354 (5th Cir.1988). III The government does not dispute any of the district court’s factual findings, but instead contests the court’s conclusion as to how a reasonable person would understand the trooper’s request to “look in”" }, { "docid": "21073853", "title": "", "text": "driver’s license at the time and three armed police officers were present). Moreover, Goltz’s failure to inform Siwek that he was free to leave or to provide him with a consent-to-search form did not render Siwek’s consent involuntary. See Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (holding that a police officer is not required “to always inform detainees that they are free to go before a consent to search may be deemed voluntary”); United States v. Carrate, 122 F.3d 666, 670 (8th Cir.1997) (holding that a written consent-to-search form is not necessary to establish voluntariness of consent to search). Examining the totality of the circumstances, the district court noted that Siwek voluntarily stopped his truck to speak with Goltz; gave his consent to search less than four minutes after approaching Goltz; easily communicated with Goltz; did not object or withdraw his consent to the search at any time; and encountered Goltz on a public street in daylight. We find that the district court did not clearly err in holding that Siwek’s consent to the search of his truck was voluntary. Second, Siwek claims that even if he did voluntarily consent, his consent did not extend to a search of the truck bed under the locked tonneau cover. The boundaries of a consensual automobile search are confined to the scope of the consent. United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir.1993); see also Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (“When an official search is properly au thorized — -whether by consent or by the issuance of a valid warrant — the scope of the search is limited by the terms of its authorization.”). We measure the scope of consent to search by a standard of objective reasonableness. United States v. Urbina, 431 F.3d 305, 310 (8th Cir.2005). The issue is what “the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). We find" }, { "docid": "17136078", "title": "", "text": "F.2d 1413, 1419-20 (7th Cir.1990) (noting that the “opening of [a car’s] door panels is not normally included in [the] set of areas to be searched” and “inherently invasive,” but ultimately holding that the dismantling of the doors was justified by probable cause); United States v. Rodriguez, 888 F.2d 519, 523-25 (7th Cir.1989) (finding that defendant’s wife’s consent to search a room did not necessarily include consent to search closed containers within that room unless the wife had apparent authority to consent to the opening of those closed containers). The most analogous set of facts we could find involved a Fifth Circuit case in which police officers, after obtaining oral consent to search a house, used a sledgehammer to knock out boards covering the entrance to the house’s attic. This opening was in the ceiling of a bedroom closet, and it provided the only means of access to the attic. In its original decision, a split Fifth Circuit panel found the police action to be reasonable. United States v. Ibarra, 948 F.2d 903, 907 (5th Cir.1991) (Ibarra I). Relying upon the Supreme Court’s decisions in Rodriguez, Jimeno, and Ross, the panel’s majority found that the defendant “having consented to a limitless search of the house, relinquished his expectation of privacy in the attic, and because other means of access were unavailable,” the police conduct was reasonable. Id. Upon rehearing en banc, however, the Fifth Circuit was equally divided (7-7) on whether the police violated the defendant’s Fourth Amendment rights, and thus the court affirmed the district court’s order suppressing the evidence. United States v. Ibarra, 965 F.2d 1354, 1354 (5th Cir.1992) (Ibarra II). Based on these precedents it was not at all clear in April 1992 that Lt. Smith was required to ask for a key to the locked room unthin the Bingo Center after Ogletree had already provided his written consent to search the entire building. Neither party has presented us with a case setting forth a rule stating that a consent to search either does or does not encompass locked rooms on the premises consented to be searched." }, { "docid": "1769882", "title": "", "text": "336, 110 S.Ct. 1093; and it is “decidedly not ‘automatic],’ ” id. (alteration in original) (quoting Chimel v. California, 395 U.S. 752, 766-67, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). Respectful of these admonishments, we have strictly construed Buie’s exceptions to the prohibition on warrantless searches. Every one of our own cases addressing the propriety of a protective sweep has turned on the searching officer’s suspicion vel non, based on some affirmative evidence, that a particular and identifiable individual, for example, the arrestee’s missing accomplice or housemate, remained in the building that was searched. See Martins, 413 F.3d 139 (man whose voice answered door thought to be inside apartment); United States v. Lawlor, 406 F.3d 37 (1st Cir.2005) (suspect’s brother thought to be in house); Crooker v. Metallo, 5 F.3d 583 (1st Cir.1993) (suspect’s accomplice thought to be in house); United States v. Daoust, 916 F.2d 757 (1st Cir.1990) (homeowner thought to be in house); see also United States v. Paradis, 351 F.3d 21, 29 n. 7 (1st Cir.2003) (protective sweep not permissible because police did not “believe that a specific individual other than the arrestee [was] present and dangerous”). Our sister circuits are widely in agreement. See, e.g., United States v. Gandia, 424 F.3d 255, 264 (2d Cir.2005) (“Officers must point to facts that give rise to an individualized suspicion and cannot rely solely on generalizations that suspects are usually accompanied by dangerous third parties.” (citing United States v. Moran Vargas, 376 F.3d 112, 116 (2d Cir.2004))); see also United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir.2004); United States v. Chaves, 169 F.3d 687, 692 (11th Cir.1999); Sharrar v. Felsing, 128 F.3d 810, 825 (3d Cir.1997); United States v. Colbert, 76 F.3d 773, 777-78 (6th Cir.1996); United States v. Ford, 56 F.3d 265, 269 & n. 6 (D.C.Cir.1995); United States v. Delgadillo-Velásquez, 856 F.2d 1292, 1298-99 (9th Cir.1988) (anticipating Buie ). By their own admission at the suppression hearing, the agents in this case had no information indicating affirmatively that anyone other than Winston was in the house. There was, as far as the government showed, only" } ]

[ { "docid": "12683574", "title": "", "text": "court denied the motion, holding that Mr. Ollie was not in custody when he confessed and therefore Chief McNeill had no obligation to give Mr. Ollie those warnings. After a brief trial, Mr. Ollie was convicted of being a felon in possession of a firearm and a felon in possession of ammunition. He was sentenced to ten years in prison. II. When a suspect is interrogated in a custodial setting, the police must advise him of his right not to answer questions and to have an attorney present during questioning. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The clearest example of custody is when a suspect is placed under formal arrest. Absent a formal arrest, the police must give Miranda warnings when the suspect’s freedom of movement is restricted to a degree akin to a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam); United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc), cert. denied, 543 U.S. 1145, 125 S.Ct. 1292, 161 L.Ed.2d 105 (2005). Whether Mr. Ollie was in custody is not a matter of his own subjective belief, but turns on whether a reasonable person in his shoes would have felt free to end the interview. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In deciding whether a person is in custody, we consider all the circumstances confronting the person when he or she was questioned. We review the district court’s factual findings for clear error and its legal conclusions, including the ultimate question of custody, de novo. LeBrun, 363 F.3d at 719. We have identified several matters that are relevant to a determination of whether an interview is custodial. See United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002); United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990). Some considerations generally act to mitigate the custodial atmosphere: These are, for instance, whether the police told the suspect that he or she was free to leave, was free to refuse" } ]

[ { "docid": "1942629", "title": "", "text": "the questioning.” Id. No one consideration is dispositive on the question of custody, nor must all of the matters considered weigh in favor of the defendant before a finding that the defendant was in custody is warranted. Id. I will address each of these considerations in turn. With respect to the first consideration, there is no dispute that the agents informed Dr. Czichray several times that he could refuse to speak to them or could ask the agents to leave his home at any time. This weighs against a holding that Dr. Czichray was in custody. But the restriction on Dr. Czichray’s freedom of movement supports the suppression of the statement that he signed. As I have said, when Dr. Czichray announced that he was late for work, the agents, rather than permitting him to leave, directed him to call in sick. And even though he was in his own home and not at a police station, he could not go to his bedroom or bathroom unattended. The district court rejected the government’s contention that the agents escorted Dr. Czichray around his home because they were concerned for their safety. Instead, the district court found that the agents’ only reason for escorting Dr. Czi-chray was “[to] look[ ] for a telephone to make sure that Czichray did not place any outside calls” to alert others of the investigation. The government relies heavily on United States v. Axsom, 289 F.3d 496 (8th Cir.2002), to support its contention that requiring that an interviewee be escorted when he or she wants to visit rooms outside the interview area does not restrict the suspect’s freedom of movement. In Axsom, however, the police escorted the suspect about his house because they had observed numerous weapons when they entered the house to execute a search warrant. In that case we explicitly held that the absence of “unrestrained freedom of movement” was “much less significant” to a determination of whether the suspect was in custody than it otherwise would have been because a reasonable person in the suspect’s “shoes should have realized the agents escorted him not" }, { "docid": "22238532", "title": "", "text": "encounter should not be treated merely as one equal factor in a multi-factor balancing test” and concluded: That a person is told repeatedly that he is free to terminate an interview is pow erful evidence that a reasonable person would have understood that he was free to terminate the interview. So powerful, indeed, that no governing precedent of the Supreme Court or this court, or any case from another court of appeals that can be located (save one decision of the Ninth Circuit decided under an outmoded standard of review, United States v. Lee, 699 F.2d 466, 467-68 (9th Cir.1982) (per curiam)), holds that a person was in custody after being clearly advised of his freedom to leave or terminate questioning. United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004). See also United States v. Salvo, 133 F.3d 943, 951 (6th Cir.1998) (noting that a statement from officers that a suspect is not in custody and free to leave is an “important factor” in determining that the suspect is not in custody); United States v. Collins, 972 F.2d 1385, 1405 (5th Cir.1992) (finding defendants were not in custody where they were “told explicitly and repeatedly that they were not under arrest and were free to leave”); United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) (noting that “[t]he most obvious and effective means of demonstrating that a suspect has not been taken into custody ... is for the police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will” (quotation marks omitted)). The additional finding of fact that Brown said he understood the officers’ advice that he was not under arrest and was free to leave strengthens the force of the instructions. See, e.g., United States v. Brave Heart, 397 F.3d 1035, 1039 (8th Cir.2005) (noting that “we think that it is highly significant that [the officer] informed [the defendant] at the outset of the interview that [the defendant’s] presence was voluntary — information that [the defendant] actually understood, given his statements on the audio tape”). These" }, { "docid": "22238531", "title": "", "text": "the point this way: [i]f the individual being questioned were innocent, and was told directly he might leave, in the absence of evidence to the contrary the interrogation was non-custodial as a matter of law. There may be situations where the restraints placed on a suspect’s freedom are so extensive that telling the suspect he was free to leave could not cure the custodial aspect of the interview, but that is not the case here. 225 F.3d at 1271. Unambiguously advising a defendant that he is free to leave and is not in custody is a powerful factor in the mix, and generally will lead to the conclusion that the defendant is not in custody absent a finding of restraints that are “so extensive that telling the suspect he was free to leave could not cure the custodial aspect of the interview.” Id. We are not alone in recognizing the importance of a police officer’s admonition that a person is free to leave. The Eighth Circuit noted that “abundant advice of freedom to terminate the encounter should not be treated merely as one equal factor in a multi-factor balancing test” and concluded: That a person is told repeatedly that he is free to terminate an interview is pow erful evidence that a reasonable person would have understood that he was free to terminate the interview. So powerful, indeed, that no governing precedent of the Supreme Court or this court, or any case from another court of appeals that can be located (save one decision of the Ninth Circuit decided under an outmoded standard of review, United States v. Lee, 699 F.2d 466, 467-68 (9th Cir.1982) (per curiam)), holds that a person was in custody after being clearly advised of his freedom to leave or terminate questioning. United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004). See also United States v. Salvo, 133 F.3d 943, 951 (6th Cir.1998) (noting that a statement from officers that a suspect is not in custody and free to leave is an “important factor” in determining that the suspect is not in custody); United States" }, { "docid": "20452201", "title": "", "text": "question of law and fact — de novo, and its factual findings for clear error. United States v. LeBrun, 363 F.3d 715, 719 (8th Cir.2004) (en banc). 1. “The ultimate question in determining whether a person is in custody for purposes of Miranda is whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004), cert. denied, 544 U.S. 1060, 125 S.Ct. 2514, 161 L.Ed.2d 1109 (2005) (quotations omitted). Agent Scherer did not arrest Perrin before questioning him. So the question comes down to the situation’s restraints. Kg., United States v. Lowen, 647 F.3d 863, 867-68 (8th Cir.2011). We consider “first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave[]” the bedroom and the house. J.D.B. v. North Carolina, — U.S. -, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011) (quotation omitted). We do not ask how Perrin perceived the situation; as the Supreme Court recently emphasized in J.D.B., the point is how a reasonable person would have seen his options in the circumstances. Ibid. The District Court analyzed the custody issue through the non-exclusive Griffin factors, as modified by Czichray and later precedent. United States v. Griffin, 922 F.2d 1343 (8th Cir.1990). The parties argue the case here the same way. With the caution that Griffin is simply a rubric for considering the ultimate issue, not a mandatory checklist, we move to the merits. The dispositive question remains: would a reasonable person in Perrin’s circumstances have considered himself free not to answer Agent Scherer’s questions and leave the premises? 2. Perrin does not assert clear error in any of the District Court’s factual findings. We see none. Here, then, is what happened — “the circumstances surrounding [Perrin’s] interrogation[.]” Lowen, 647 F.3d at 867 (quotation omitted). After state investigators detected downloads of child pornography at the house where Perrin lived, federal agents got a warrant to search the premises. At" }, { "docid": "20452200", "title": "", "text": "MARSHALL, District Judge. Walter Perrin admitted possessing child pornography. He made this admission in his bedroom under questioning by Craig Scherer, an agent with the Immigration and Customs Enforcement arm of the Department of Homeland Security. Agent Scherer led the team that executed a search warrant looking for child pornography at the small house in Sioux Falls where Perrin lived with his mother, five other people, and many computers. United States v. Boll, 635 F.3d 340 (8th Cir. 2011) is a companion case. After the District Court denied Perrin’s motion to suppress his statements to Agent Scherer, Perrin pleaded guilty, reserving the right to appeal the suppression ruling. The issue is whether Perrin was in custody when he confessed to Agent Scherer. If so, Perrin’s statements must be suppressed because the Agent gave Perrin no Miranda warnings before the questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If not, then his statements come in and Perrin’s conviction stands. We review the District Court’s decision on custody — a mixed question of law and fact — de novo, and its factual findings for clear error. United States v. LeBrun, 363 F.3d 715, 719 (8th Cir.2004) (en banc). 1. “The ultimate question in determining whether a person is in custody for purposes of Miranda is whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004), cert. denied, 544 U.S. 1060, 125 S.Ct. 2514, 161 L.Ed.2d 1109 (2005) (quotations omitted). Agent Scherer did not arrest Perrin before questioning him. So the question comes down to the situation’s restraints. Kg., United States v. Lowen, 647 F.3d 863, 867-68 (8th Cir.2011). We consider “first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave[]” the bedroom and the house. J.D.B. v. North Carolina, — U.S. -, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011) (quotation omitted). We do not" }, { "docid": "1942628", "title": "", "text": "470 U.S. at 309, 105 S.Ct. 1285, that presents mixed questions of fact and law. A court of appeals reviews a district court’s custody determination de novo, but the underlying factual findings for clear error. United States v. LeBrun, 363 F.3d 715, 719 (8th Cir.2004) (en banc). In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990), we identified six considerations which “either mitigate or aggravate an atmosphere of custodial interrogation.” These considerations are “whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not under arrest”; “whether the suspect possessed unrestrained freedom of movement” during the interview; “whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions”; “whether strong arm tactics or deceptive stratagems were employed during questioning”; whether the atmosphere of the questioning was dominated by law enforcement officers; and “whether the suspect was placed under arrest at the termination of the questioning.” Id. No one consideration is dispositive on the question of custody, nor must all of the matters considered weigh in favor of the defendant before a finding that the defendant was in custody is warranted. Id. I will address each of these considerations in turn. With respect to the first consideration, there is no dispute that the agents informed Dr. Czichray several times that he could refuse to speak to them or could ask the agents to leave his home at any time. This weighs against a holding that Dr. Czichray was in custody. But the restriction on Dr. Czichray’s freedom of movement supports the suppression of the statement that he signed. As I have said, when Dr. Czichray announced that he was late for work, the agents, rather than permitting him to leave, directed him to call in sick. And even though he was in his own home and not at a police station, he could not go to his bedroom or bathroom unattended. The district court rejected the government’s contention that" }, { "docid": "3277407", "title": "", "text": "time. The agent also showed Mr. Bordeaux that the Tahoe’s doors were unlocked. About fifty minutes into the interview, Mr. Bordeaux went into his apartment, by himself, to use the bathroom. He returned after two or three minutes. Mr. Bordeaux then told the agent that he drank heavily when his father died and that he may have done things, like abuse AWH, that he did not remember. After an hour and forty-five minutes, during which time the tribal investigator did not actively participate in the questioning, Mr. Bordeaux stopped the interview and said that he would not answer any more questions until he was represented by an attorney. At that time, the agent told Mr. Bordeaux that he had a warrant authorizing the collection of a urine sample, and he took Mr. Bordeaux to a medical clinic where the sample was collected. The district court denied Mr. Bordeaux’s motion to suppress his statements to the officers, finding that he was not in custody. We review the district court’s custody determination de novo and its underlying factual findings for clear error. United States v. Czichray, 378 F.3d 822, 831 (8th Cir.2004), petition for cert. filed, 78 U.S.L.W. 3401 (U.S. Jan. 3, 2005) (No. 04-894). The crux of this question is whether, viewing the circumstances as a whole, a reasonable person in Mr. Bordeaux’s position would have believed that law enforcement officers had limited his or her freedom of movement to a degree associated with formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); United States v. LeBrun, 363 F.3d 715, 723-24 (8th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 1292, — L.Ed.2d - (No. 04-332), 73 U.S.L.W. 3162 (U.S. Feb. 22, 2005). Mr. Bordeaux presents his intelligence and the details of the .interview as the circumstances mainly relevant in this interview. See LeBrun, 363 F.3d at 723. In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990), we identified six matters to consider when determining whether a person was in custody. These matters, while instructive, see, e.g., United States v. Galceran, 301" }, { "docid": "1942609", "title": "", "text": "fees to persons who referred new patients to Czichray’s chiropractic clinic. There was no threat of arrest during the encounter, and the agents never displayed weapons. Czichray was not arrested until weeks later. Czichray was charged in a twenty-seven count indictment with various crimes relating to an alleged health care billing fraud scheme. He brought a motion to suppress his signed statement. After concluding that Czichray was in custody and had not been given Miranda warnings, the district court granted the motion. In reviewing the district court’s grant of Czichray’s motion to suppress, we review its conclusions of law de novo, and its findings of fact for clear error. United States v. Guevara-Martinez, 262 F.3d 751, 753 (8th Cir.2001). II. The ultimate question in determining whether a person is in “custody” for purposes of Miranda is “whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (internal quotation omitted). The “only relevant inquiry” in considering that question is how a reasonable person in Czichray’s position would have understood his situation. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); see generally Yarborough v. Alvarado, — U.S. -, ---, 124 S.Ct. 2140, 2147-50, 158 L.Ed.2d 938 (2004). In making that evaluation, we consider the totality of the circumstances that confronted the defendant at the time of questioning. United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002). We have observed that “[t]he most obvious and effective means of demonstrating that a suspect has not been taken into custody ... is for the police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will.” United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) (internal quotation omitted). The FBI agents who interviewed Czichray exercised this “obvious and effective” means of demonstration in spades. Boylan and Bisswurm testified that they informed Czichray at least eight times that his participation in the interview was" }, { "docid": "1942610", "title": "", "text": "relevant inquiry” in considering that question is how a reasonable person in Czichray’s position would have understood his situation. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); see generally Yarborough v. Alvarado, — U.S. -, ---, 124 S.Ct. 2140, 2147-50, 158 L.Ed.2d 938 (2004). In making that evaluation, we consider the totality of the circumstances that confronted the defendant at the time of questioning. United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002). We have observed that “[t]he most obvious and effective means of demonstrating that a suspect has not been taken into custody ... is for the police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will.” United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) (internal quotation omitted). The FBI agents who interviewed Czichray exercised this “obvious and effective” means of demonstration in spades. Boylan and Bisswurm testified that they informed Czichray at least eight times that his participation in the interview was voluntary, and that he was free to ask the agents to leave his home. The magistrate judge recommended that “[g]iven this evidence, which is not controverted,” the district court should find that Czichray was advised of his freedom to terminate the interview at will. (Add.114). The district court ultimately found that “[a]s the Magistrate Judge noted, it is clear from the record that the agents informed Czichray several times that he could refuse to speak with them, and that he could tell them to leave.” (Add.23). We believe that this abundant advice of freedom to terminate the encounter should not be treated merely as one equal factor in a multi-factor balancing test designed to discern whether a reasonable person would have understood himself to be in custody. That a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable person would have understood that he was free to terminate the interview. So powerful, indeed, that no governing precedent of the Supreme Court or this court, or any" }, { "docid": "3277408", "title": "", "text": "factual findings for clear error. United States v. Czichray, 378 F.3d 822, 831 (8th Cir.2004), petition for cert. filed, 78 U.S.L.W. 3401 (U.S. Jan. 3, 2005) (No. 04-894). The crux of this question is whether, viewing the circumstances as a whole, a reasonable person in Mr. Bordeaux’s position would have believed that law enforcement officers had limited his or her freedom of movement to a degree associated with formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); United States v. LeBrun, 363 F.3d 715, 723-24 (8th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 1292, — L.Ed.2d - (No. 04-332), 73 U.S.L.W. 3162 (U.S. Feb. 22, 2005). Mr. Bordeaux presents his intelligence and the details of the .interview as the circumstances mainly relevant in this interview. See LeBrun, 363 F.3d at 723. In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990), we identified six matters to consider when determining whether a person was in custody. These matters, while instructive, see, e.g., United States v. Galceran, 301 F.3d 927, 929-931 (8th Cir.2002), are not dispositive: “[T]he court must consider whether the historical facts, as opposed to the one-step-removed Griffin factors, establish custody.” Czichray, 378 F.3d at 828. We conclude that Mr. Bordeaux was not in custody. The agent told Mr. Bordeaux that his participation 'in the interview was voluntary, that he could end the interview at any time, that he was not under arrest, and that he would not be arrested at the end of the interview. He had unrestrained freedom of movement during the interview — the officers allowed him to go into the apartment building by himself in the midst of the interview. He also was not subjected to any strong arm or deceptive tactics; no one menaced or tricked him. Finally, notwithstanding his low IQ, it was not reasonable for him to believe that he was in custody: No great mental acumen was required to understand his situation, VI. Mr. Bordeaux also argues that his statement to the FBI agent that he might have done things that he did" }, { "docid": "1942635", "title": "", "text": "weighs against a finding that the interview took place in a custodial setting. III. To determine whether Dr. Czichray was in custody, we must assess the totality of the circumstances surrounding his statement. It is important to emphasize that the considerations identified in Griffin are not by any means exclusive, and that the answer to the ultimate question depends on a careful evaluation of all the relevant facts. But in this case, I think that our opinion in Griffin directs us rather clearly to a conclusion that the district court did not err when it held that Dr. Czichray’s situation entitled him to Miranda warnings. Only two considerations (whether Dr. Czichray was informed that he was free to end the interview and whether he was arrested at the end of the interview) tend to support a finding that he was not in custody. But actions sometimes speak louder than words. I believe that the agents’ restrictions on Dr. Czichray’s movements and on his access to his telephones significantly undermined any statements that they made to him about his freedom to ask them to leave or to end the interview. A reasonable person in Dr. Czichray’s position would not believe that he was free to end the interview or to ask the agents to leave. Thus only one fact (the absence of an arrest at the interview’s conclusion) weighs substantially in favor of the government’s position, and in any event as an original proposition it is hard to see why this fact has much if any relevance to the question of whether Dr. Czi-chray was in custody. I would therefore hold that Dr. Czichray was in custody when he signed the statement. While the absence of Miranda warnings will not require suppression when suspects volunteer inculpatory evidence during a non-custodial interrogation, they must be informed of and voluntarily, intelligently, and knowingly waive their Miranda rights when they are in custody, or their statements are inadmissible. See Miranda, 384 U.S. at 478-79, 86 S.Ct. 1602. Because the written statement in the instant case was made during an “incommunicado interrogation ... in a" }, { "docid": "14224839", "title": "", "text": "the conclusion of the brief interview, Laurita was not arrested. Special Agent Howley thanked Laurita for his time, giving Laurita the agent’s business cárd. They shook hands, and Laurita returned to work. Cf. United States v. Diaz, 736 F.3d 1143, 1149 (8th Cir.2013) (highlighting that, rather than arresting a suspect at the conclusion of questioning, officers “instead thanked [the suspect], encouraged him to continue his cooperation, and ‘wished [him] a good trip’”). Although Special Agent' Howley advised Laurita that counseling or treatment would look favorable' to the court, which Laurita argues implied further action would be taken against Laurita,' these comments have no bearing on whether Laurita was restrained' at that time or would have felt free to leave the interview. See Czichray, 378 F.3d at 829 (“It is appropriate for an investigator to advise a suspect of the potential course and consequences of a criminal investigation.... But the presentation of [such] information .,. does not tend to restrain a person’s freedom of movement such that he should be deemed in custody.”). Instead, Special Agent Hawley’s encouragement to seek treatment reflects the conversational, cooperative tone of the interview. Weighing .the totality of the circumstances, we agree with the magistrate judge’s recommended finding that a reasonable person in Laurita’s position would have felt free to términate:or leave the interview with Special Agent Howley and King. See Diaz, 736 F.3d at 1149- (holding an interview was not custodial where officers did not inform the suspect “ ‘he was free to leave,’ ” but the suspect was “calm and cooperative throughout the interview, and there [was] no evidence the officers ever surrounded [the suspect], used coercive tactics,'or restrained [the suspect’s] freedom of movement in any way”). Lau-rita was not subjected to a custodial interrogation. III. CONCLUSION We reverse the district court’s order granting Laurita’s motion to suppress and remand for further- proceedings consistent with this opinion. . We find the district court clearly erred when it found Laurita \"was told that 'he needed’ to accompany [his] supervisor to the locked human resources area of the office,” when nothing in the record indicates this" }, { "docid": "3625260", "title": "", "text": "to questions. United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). The remaining factors, if present, favor a finding that Gibo-ney was in custody during the interrogation. Id. Those factors are: “(4) whejther strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; [and] (6) whether the suspect was placed under arrest at the termination of the questioning.” Id. The first factor is present and weighs heavily against a finding that Giboney was in custody. Detective Walk repeatedly informed Giboney during the interview that he was not under arrest, could end the interview whenever he wanted, and was free to leave. Giboney confirmed his understanding with responses such as “Ok” and “That’s fine.” As the court in Czichray explained, “That a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable per son would have understood that he was free to terminate the interview.” 378 F.3d at 826. “So powerful,” the court continued, “that no governing precedent of the Supreme Court or [the Eighth Circuit] ... holds that a person was in custody after being clearly advised of his freedom to leave or terminate questioning.” Id.; see also United States v. Perrin, 659 F.3d 718, 721 (8th Cir. 2011) (stating that the Eighth Circuit has “never held that a person was in custody after receiving” admonitions from law enforcement that the person was free to leave). As to the second factor, Giboney argues that his freedom of movement was restrained during questioning because Detective Walk escorted him to the restroom and outside for a smoke. We fail to see how Detective Walk “restrained. [Gibo-ney’s] freedom of movement to the degree associated with formal arrest” merely by joining Giboney as he moved about and outside the house. See United States v. Laurita, 821 F.3d 1020, 1024 (8th Cir. 2016) (internal quotation marks omitted); see also Czichray, 378 F.3d at 825, 830 (defendant who was accompanied by law enfórcement to his bedroom and bathroom during questioning was not in custody for purposes" }, { "docid": "1942611", "title": "", "text": "voluntary, and that he was free to ask the agents to leave his home. The magistrate judge recommended that “[g]iven this evidence, which is not controverted,” the district court should find that Czichray was advised of his freedom to terminate the interview at will. (Add.114). The district court ultimately found that “[a]s the Magistrate Judge noted, it is clear from the record that the agents informed Czichray several times that he could refuse to speak with them, and that he could tell them to leave.” (Add.23). We believe that this abundant advice of freedom to terminate the encounter should not be treated merely as one equal factor in a multi-factor balancing test designed to discern whether a reasonable person would have understood himself to be in custody. That a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable person would have understood that he was free to terminate the interview. So powerful, indeed, that no governing precedent of the Supreme Court or this court, or any case from another court of appeals that can be located (save one decision of the Ninth Circuit decided under an outmoded standard of review, United States v. Lee, 699 F.2d 466, 467-68 (9th Cir.1982) (per curiam)), holds that a person was in custody after being clearly advised of his freedom to leave or terminate questioning. The weighty inference that Czichray was not in custody after receiving such advice is strengthened further by the context in which the interview occurred — the living room of Czichray’s home. When a person is questioned “on his own turf,” United States v. Rorex, 737 F.2d 753, 756 (8th Cir.1984), we have observed repeatedly that the surroundings are “not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation.” United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985); see also United States v. Wolk, 337 F.3d 997, 1007 (8th Cir.2003); Axsom, 289 F.3d at 502; United States v. Sutera, 933 F.2d 641, 647 (8th Cir.1991). Even our court’s one brief suggestion to the contrary, see" }, { "docid": "3494020", "title": "", "text": "express questioning or functional equivalent), the only issue is whether the interrogation was custodial. This court invokes a nonexclusive, six-factor test when making such a determination: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning. Griffin, 922 F.2d at 1349. The analysis depends upon a review of the totality of the circumstances, and “[t]he ultimate test is whether a reasonable person in that position would have felt free to end the interview.” Aldridge, 664 F.3d at 711. The first Griffin factor weighs heavily in favor of noncustody when officers clearly inform a suspect that she is free to leave or decline questioning. See United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004). However, when officers inform a suspect only that she is not under arrest, the first factor is less determinative in favor of noncustody, and our analysis relies more on the other indicia of custody. See United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir.2006) (where interviewer’s statement to suspect that she was not under arrest weighed against custody finding, it was less determinative than a statement informing suspect that answers were voluntary and she was free to leave). This case presents the latter situation, as Sanchez’s interviewers informed her that she was not under arrest but did not inform her that she was free to leave or decline questioning. Looking to the second factor, it is unclear whether Sanchez’s freedom of movement was restrained during the interview. While she was not handcuffed, see United States v. Galceran, 301 F.3d 927," }, { "docid": "7922888", "title": "", "text": "The officers complied with his request and left his residence. Considering the totality of the circumstances, the district court did not clearly err in determining that Johnson voluntarily consented to the search. See Saenz, 474 F.3d at 1137. Johnson next argues that the officers should have advised him of his Miranda rights before interviewing him both in his home and at the police station. Miranda v. Arizona requires that an individual be read certain warnings before being subject to “custodial interrogation.” 384 U.S. at 444, 86 S.Ct. 1602. If an individual is not subjected to custodial interrogation, no warning need be given. See, e.g., Illinois v. Perkins, 496 U.S. 292, 296-97, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (holding that an undercover officer need not give a Miranda warning to an incarcerated suspect because there is no custodial interrogation from an undercover officer). “A custodial interrogation is defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.’” United States v. Flores-Sandoval, 474 F.3d 1142, 1146 (8th Cir.2007) (quoting Maine v. Thibodeau, 475 U.S. 1144, 1146, 106 S.Ct. 1799, 90 L.Ed.2d 343 (1986)). “ ‘The ultimate inquiry ... is whether there was a formal arrest, or restraint on freedom of movement of the degree associated with a formal arrest.’ ” Id. (quoting United States v. Black Bear, 422 F.3d 658, 661 (8th Cir.2005)). To make this determination, we must first consider the totality of the circumstances and then decide “whether a reasonable person in his position would consider his ‘freedom of movement restricted to the degree associated with formal arrest.’ ” Id. (quoting United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004), cert. denied, 544 U.S. 1060, 125 S.Ct. 2514, 161 L.Ed.2d 1109 (2005)). We make our determination based on the objective facts, not Johnson’s subjective views. Id. We have previously explained that, although these factors are not exclusive, factors that would indicate custody are: (1) whether the officers informed Johnson he was free to leave and not required to answer any questions; (2)" }, { "docid": "3625258", "title": "", "text": "of a suppression motion unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the [c]ourt is left with a firm conviction that a mistake has been made.” United States v. Donnelly, 475 F.3d 946, 951 (8th Cir. 2007) (internal quotation marks omitted). A. Pre-Arrest Statements Giboney first argues that his pre-arrest statements should be. suppressed because Detective Walk extracted those statements without advising Giboney of his Miranda rights. The Fifth Amendment requires that Miranda warnings be given when a person is interrogated by law enforcement after being taken into custody. United States v. Huether, 673 F.3d 789, 794 (8th Cir. 2012). As there is no uncertainty that Giboney was interrogated by Detective Walk at Giboney’s residence, the only issue is whether the interrogation was custodial. “The ultimate question in determining whether a person is in ‘custody’ for purposes of Miranda is ‘whether there is a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.’ ” United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). This determination is not based on the interrogator’s perspective; “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Six factors inform our analysis, although the factors are not exhaustive and need not be applied “ritualistically” in every case. Czichray, 378 F.3d at 827. The first three factors, which if present tend to show that Giboney was not in custody, are: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; [and] (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond" }, { "docid": "3625259", "title": "", "text": "Czichray, 378 F.3d 822, 826 (8th Cir. 2004) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). This determination is not based on the interrogator’s perspective; “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Six factors inform our analysis, although the factors are not exhaustive and need not be applied “ritualistically” in every case. Czichray, 378 F.3d at 827. The first three factors, which if present tend to show that Giboney was not in custody, are: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; [and] (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions. United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). The remaining factors, if present, favor a finding that Gibo-ney was in custody during the interrogation. Id. Those factors are: “(4) whejther strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; [and] (6) whether the suspect was placed under arrest at the termination of the questioning.” Id. The first factor is present and weighs heavily against a finding that Giboney was in custody. Detective Walk repeatedly informed Giboney during the interview that he was not under arrest, could end the interview whenever he wanted, and was free to leave. Giboney confirmed his understanding with responses such as “Ok” and “That’s fine.” As the court in Czichray explained, “That a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable per son would have understood that he was free to terminate the interview.” 378 F.3d at 826. “So powerful,” the court continued, “that no" }, { "docid": "11688588", "title": "", "text": "magistrate judge recommended denying the motion. The district court accepted the recommendation as to the November 21 hospital interview, the morning statements to Agent Troné on December 10, and the late-afternoon conversation on December 10. The district court suppressed the December 9 and December 10 statements to Wipperfurth — for violating the Fifth Amendment. The government appeals. Having jurisdiction under 18 U.S.C. § 3731, this court reverses. The standard of review for suppression issues is two-pronged. See United States v. Sheikh, 367 F.3d 756, 762 (8th Cir.2004). This court reviews a district court’s factual findings for clear error, and its legal conclusions de novo. Id. “In custody” determinations are independently reviewed on direct appeal. Id. I. Interrogation by agent Wipperfurth on December 9 When taken into custody for questioning, an individual must be advised of the rights to be free from compulsory self-incrimination, and to the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda warnings are required only where a person is deemed to be in custody. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The ultimate inquiry to determine custody for Miranda purposes is whether there was a formal arrest, or restraint on freedom of movement of the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). This court first considers the totality of the circumstances of the historical facts that confronted Black Bear at the time of questioning. See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995); United States v. Czichray, 378 F.3d 822, 826-28 (8th Cir.2004). Second, the only relevant inquiry is whether reasonable persons in Black Bear’s position would consider their freedom of movement restricted to the degree associated with a formal arrest. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Thompson, 516 U.S. at 112, 116 S.Ct. 457. This determination is based on the objective circumstances, not on subjective views of the participants. See United" }, { "docid": "22579546", "title": "", "text": "whereabouts of David Lee and the guns, and that he was thus entitled to receive the Miranda warnings before questioning. We review de novo the district court’s legal determination about whether a defendant was in custody, and we review the court’s factual findings for clear error. United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002). To determine whether an individual is in custody, a court must consider “whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (internal quotation omitted). The custody inquiry turns on whether, given the totality of the circumstances, a reasonable person would have felt at liberty to terminate the interrogation and leave or cause the agents to leave. United States v. New, 491 F.3d 369, 373 (8th Cir.2007). The district court found that all the pre-arrest statements at issue were made during the roughly five-minute period after Vinton made contact with the officers at his front door. The court found that Vinton made the statements in his own home, a location that is “ ‘not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation.’ ” United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004) (quoting United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985)); see also Axsom, 289 F.3d at 502; United States v. Sutera, 933 F.2d 641, 647 (8th Cir.1991). The court also found that Brown and Vinton were alone in Vinton’s kitchen during the questioning, and that the police had not restrained, threatened, or coerced Vinton. These findings were not clearly erroneous and were amply supported by Brown’s testimony, which the district court credited. Based on the totality of the circumstances, we agree with the district court that Vinton was not in custody, because a reasonable person in Vinton’s position would have felt at liberty to terminate the interrogation and ask the officers to leave. Vinton asserts that the district court erred in concluding that Brown’s testimony was credible and" } ]

[ { "docid": "3639663", "title": "", "text": "States v. Alamin, 895 F.2d 1335 (11th Cir.1990), “without a motion by the government requesting a departure, the district court may not depart from the guidelines on the ground of substantial assistance.” Id. at 1337; see also United States v. Chotas, 913 F.2d 897, 898 (11th Cir.1990) (motion by government essential prerequisite). At sentencing the government specifically declined to make such a motion, stating that Villarino’s cooperation did not rise to the level warranting a section 5K1.1 departure. Appellant’s argument regarding enhancement for “more than minimal planning” under section 2Fl.l(b)(2)(A) also is without merit and misreads the Sentencing Guidelines. Villarino maintains that the commentary following U.S.S.G. § 2Fl.l(b) “indicates that this two-point upward adjustment is alternative rather than cumulative.” That is, because his offense level was enhanced five levels pursuant to section 2Fl.l(b)(l)(F) for loss in excess of $40,-000, it could not be enhanced under any other subsection of section 2F1.1, including section 2F1.1(b)(2) for “more than minimal planning.” However, the commentary appellant relies on applies only to section 2F1.1(b)(3), providing that “[t]he adjustments in § 2F1.1(b)(3) are alternative rather than cumulative.” The reference here is to use of the conjunctive “or” in section 2F1.1(b)(3). The district court correctly enhanced appellant’s sentence by applying U.S.S.G. §§ 2F1.1(b)(1)(F) and 2Fl.l(b)(2) cumulatively. The district court’s summary rejection of appellant’s argument that he was entitled to a reduction in sentence for acceptance of responsibility also can be reviewed conclusively on appeal. Villarino’s argument simply finds no support in the record. The PSI indicates that although appellant acknowledged responsibility for his criminal behavior, since his release on bond he has committed, and has been found guilty of, nine additional offenses; he faces trial in at least four cases involving seven additional charges. In addition, Villarino failed to appear for his initially scheduled sentencing hearing and ultimately was arrested on a bench warrant. The commentary following U.S.S.G. § 3E1.1 provides that “[i]n determining whether a defendant qualifies for this provision, appropriate considerations include ... voluntary termination or withdrawal from criminal conduct or associations.” This court has held that a defendant who continues to participate in" } ]

[ { "docid": "23349365", "title": "", "text": "argues that he accepted responsibility even though the court determined that he attempted to obstruct justice. When a sentencing court properly enhances a defendant’s offense level under § 3C1.1 for obstructing justice, “he is presumed not to have accepted responsibility.” United States v. Larsen, 909 F.2d 1047, 1050 (7th Cir.1990). Application Note 4 to § 3E1.1 states that “[c]onduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 comment, (n.4). However, there may be “extraordinary cases in which adjustments under both sec.sec. 3C1.1 and 3E1.1 may apply.” Id.; see United States v. Lallemand, 989 F.2d 936, 938 (7th Cir.1993) (explaining that a defendant can obstruct or attempt to obstruct justice at time “t” and later accept responsibility at time “t + 1”). The district court determined that Ewing’s case was not an extraordinary one within the meaning of U.S.S.G. § 3C1.1 Application Note 4. See Lallemand, 989 F.2d at 938 (finding extraordinary case where defendant fully cooperated with law enforcement officials after arrest); United States v. Jones, 983 F.2d 1425, 1434 (7th Cir.1993) (hypothesizing that reduction would be appropriate “where the defendant challenges the constitutionality of the statute underlying the charge”). Ewing’s suggestion in his letter that Couch testify that he had no knowledge of the crime until the date of arrest is an attempt to affirmatively shift his own criminal liability elsewhere. The letter is inconsistent with any purported acceptance of responsibility. Instead of contesting this interpretation of the letter,' Ewing contends that he satisfied § 3E1.1 through his guilty plea which was sufficiently timely to spare the government the time and expense of a trial and through his letter to Judge Crabb and allocution which showed true remorse for his action. “A defendant who enters a guilty plea is not entitled to an adjustment ... as a matter of right.” U.S.S.G. § 3E1.1, comment, (n.3). The “timeliness of the defendant’s conduct in manifesting the acceptance of responsibility” is a factor in determining whether a defendant qualifies for a § 3E1.1 reduction. Id., comment," }, { "docid": "23349364", "title": "", "text": "Judge Crabb properly established the elements for obstruction of justice. Ewing merited the two level enhancement. C. Acceptance of Responsibility Ewing also asserts that the district court erred by failing to recognize his acceptance of responsibility. Section 3E1.1 allows for a two level reduction in the base offense level if the defendant “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). The guideline further provides a one level reduction if the defendant satisfies the above requirement, his base offense level is 16 or greater, and he assists authorities in the prosecution of his own misconduct by timely informing the government of his involvement in the offense or by timely notifying authorities of his intention to enter a guilty plea. See id. § 3El.l(b). Unlike obstruction of justice supra, the defendant has the burden of clearly demonstrating, by a preponderance of the evidence, that he merits a reduction for acceptance of responsibility. See United States v. Akindele, 84 F.3d 948, 956 (7th Cir.1996); United States v. Morris, 76 F.3d 171, 175-76 (7th Cir.1996). Ewing argues that he accepted responsibility even though the court determined that he attempted to obstruct justice. When a sentencing court properly enhances a defendant’s offense level under § 3C1.1 for obstructing justice, “he is presumed not to have accepted responsibility.” United States v. Larsen, 909 F.2d 1047, 1050 (7th Cir.1990). Application Note 4 to § 3E1.1 states that “[c]onduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 comment, (n.4). However, there may be “extraordinary cases in which adjustments under both sec.sec. 3C1.1 and 3E1.1 may apply.” Id.; see United States v. Lallemand, 989 F.2d 936, 938 (7th Cir.1993) (explaining that a defendant can obstruct or attempt to obstruct justice at time “t” and later accept responsibility at time “t + 1”). The district court determined that Ewing’s case was not an extraordinary one within the meaning of U.S.S.G. § 3C1.1 Application Note 4. See Lallemand, 989 F.2d at 938 (finding extraordinary case where defendant fully cooperated with law enforcement" }, { "docid": "10033118", "title": "", "text": "acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial... In each instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pretrial statements and conduct. U.S.S.G. § 3E1.1, comment, (n.2). In this case, Kelly attempted to plead guilty to misdemeanor witness harassment pursuant to 18 U.S.C. § 1512(c) prior to trial on felony charge of intimidating a witness, pursuant to 18 U.S.C. § 1512(b)(1). However, the U.S. Attorney’s Misdemeanor Committee refused the plea offer and prosecuted Kelly at trial. At the request of the defense, the jury was instructed on the lesser included § 1512(c) charge, and Kelly was ultimately convicted of misdemeanor harassment rather than felony intimidation. Under the circumstances, Kelly’s demonstrated willingness to take responsibility for the conduct of which a jury ultimately found him guilty satisfies the requisites of § 3E1.1 and warrants a two-point reduction. That Kelly’s base offense level has been enhanced by two points for obstruction of justice does not foreclose a reduction for acceptance of responsibility. Although in most cases “[cjonduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct!,][t]here may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1, comment, (n.3). See United States v. Restrepo, 936 F.2d 661, 669 (2d Cir.1991) (approving district court’s application of ad justments pursuant to both § 3C1.1 and § 3E1.1). Here, the conduct which led to the enhancement for obstruction of justice took place soon after the offense conduct, at the initiation of the investigation. Nonetheless, Kelly did seek to accept responsibility formally for his criminal conduct before trial, and it was the government’s choice, not his, to proceed. The fact that Kelly will receive a two-point reduction for acceptance of responsibility despite his obstruction of justice should not be interpreted as an incentive for others to hinder investigations in the hopes of heading off formal charges. Rather, in the unique circumstances where a defendant" }, { "docid": "15184470", "title": "", "text": "standard of review more deferential than that of clear error. United States v. Diaz, 39 F.3d 568, 571 (5th Cir.1994). The defendant bears the burden of proving that he is entitled to the downward adjustment. United States v. Kinder, 946 F.2d 362, 367 (5th Cir.1991), cert. denied, — U.S. -, -, 112 S.Ct. 1677 & 2290, 118 L.Ed.2d 394, 119 L.Ed.2d 214 (1992). Tremelling received a two-point upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1 for absconding. Tremelling does not challenge this adjustment, which is authorized by the guidelines for willfully failing to appear. See § 3C1.1, comment. (n. 3(e)). “Conduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” Section 3E1.1, comment. (n. 4). Tremelling argues that his absconding should not have automatically resulted in two extra points for obstruction of justice and no reduction for acceptance of responsibility. However, as quoted above, the interaction of these two provisions is specifically contemplated by the guidelines. Moreover, in view of the fact that Tremelling remained a fugitive for over two years, he has not shown that his case is extraordinary and deserving of the reduction. The district court did not err in refusing to find that Tremelling was not entitled to a reduction of his offense level for acceptance of responsibility. III. Minor participant Tremelling argues that the district court erred in not finding that he was a minor participant. He admits that he arranged for the sale of the marijuana, that he made telephone calls, that he met with the parties to the transaction, that he was present, and that he helped to unload and weigh the bales of marijuana, but he contends that it was not his money that was used to purchase the marijuana. He argues that he was merely a go-between, and that while his participation was more than minimal, it was less than that of Jernigam Section 3B1.2 provides for a reduction of two" }, { "docid": "23100393", "title": "", "text": "sentencing discretion unless the Notes are contrary to federal law. United States v. Banks, 130 F.3d 621, 624-25 (4th Cir.1997). The evidence of Hudson’s obstructive conduct in this case is not disputed. Hudson failed to appear at scheduled meetings in the pre-trial services office and at sentencing, and he actively eluded apprehension by the police for more than six months. When he was finally arrested, he was using an alias and had obtained several types of false identification to aid his use of this alias. He also stated his intent to remain at large until police located and arrested him. The evidence thus unequivocally demonstrated that Hudson willfully impeded the administration of justice by “willfully failing to appear ... for a judicial proceeding.” U.S.S.G. § 3C1.1 & cmt. n. 4(e). Accordingly, the sentencing court erred in failing to enhance Hudson’s offense level, as required by Hudson’s obstructive conduct. This obstruction of justice likewise precluded the sentencing court from granting a reduction in Hudson’s offense level for acceptance of responsibility unless Hudson could demonstrate that his circumstances presented an “extraordinary case.” Although U.S.S.G. § 3El.l(a) provides for a two or three-level decrease in the defendant’s offense level “if the defendant clearly demonstrates acceptance of responsibility for his offense,” the Application Notes instruct that conduct amounting to an obstruction of justice under § 3C1.1 ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. “There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1, cmt. n. 4. In this case, the district court determined that Hudson was entitled to a reduction for acceptance of responsibility because his flight was prompted by fear that the government was not going to recommend a reduction in his sentence for his assistance to the authorities. The court stated, “I’m going to accept your explanation that you were just scared ... and find that you have accepted responsibility.” While we accept the district court’s factual finding that Hudson was “scared,” we conclude, as a matter of law, that fear that the government will not" }, { "docid": "22420792", "title": "", "text": "in determining that Singh had committed perjury during his sentencing hearing, we cannot say that the district court’s decision to enhance Singh’s adjusted offense level pursuant to U.S.S.G. § 3C1.1 was clearly erroneous. Therefore, we affirm the district court on this issue. C. LOSS OF ACCEPTANCE OF RESPONSIBILITY RED UCTION Finally, under the Sentencing Guidelines, a defendant may receive a two-level or a three-level reduction in his offense level if he accepts responsibility for his offense(s) in a timely manner. U.S.S.G. § 3E1.1. We review “the district court’s determination of acceptance of responsibility only for clear error.” United States v. Dodd, 111 F.3d 867, 870 (11th Cir.1997). “A district court’s determination that a defendant is not entitled to acceptance of responsibility will not be set aside unless the facts in the record clearly establish that a defendant has accepted personal responsibility.” United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir.1999). In the instant case, we cannot say that the district court committed clear error in denying Singh a reduction in his adjusted offense level for accepting responsibility for his crimes or that the record clearly establishes that Singh has fully accepted personal responsibility for his crimes. As noted supra, the district court did not err in finding that Singh committed perjury when he testified at his sentencing hearing or in finding that Singh only admitted to a minor part of his crimes. “Conduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct”, U.S.S.G. § 3E1.1, comment, (n. 4), and “[a]n adjustment under the guidelines for acceptance of responsibility is not warranted when a defendant’s conduct results in an enhancement for obstruction of justice.” United States v. Kramer, 943 F.2d 1543, 1547 n. 4 (11th Cir.1991). Here, Singh willfully testified falsely at his sentencing hearing, and no extraordinary circumstances exist which would justify applying adjustments under both U.S.S.G. §§ 3C1.1 and 3E1.1. Accordingly, we affirm the district court’s decision not to grant Singh a reduction in his adjusted offense level, pursuant to U.S.S.G. § 3E1.1, for acceptance of" }, { "docid": "23318174", "title": "", "text": ". References to the United States Sentencing Commission Guidelines, in this opinion, are to the Guidelines in effect at the time appellants were sentenced (Nov. 1991). . More precisely, the district court determined the following calculation was appropriate: (1) the base offense level was 9; (2) based on the amount of counterfeit currency involved, 4 levels were added resulting in an offense level of 13; (3) based on the determination of obstruction of justice, 2 levels were added resulting in an offense level of 15; (4) based on appellants’ acceptance of responsibility 2 levels were subtracted resulting in a total offense level of 13. We have previously noted the inconsistency of a court finding that a defendant has accepted responsibility and at the same time obstructed justice. See United States v. Werlinger, 894 F.2d 1015, 1015-16 n. 2 (8th Cir.1990). The Guidelines provide that: \"Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1, comment (n. 1) (emphasis added). In this case, the plea agreements and sentencing stipulations stated that it was the government’s opinion that appellants had accepted responsibility and should receive the relevant two point reduction. Similarly, the presentence investigation and report calculated appellants’ offense levels to include the two point acceptance of responsibility reductions. That determination was ultimately applied by the sentencing court. Since the appropriateness of this reduction has not been raised on appeal, we will not reach it in this case. We can only presume that the district court, while not explicitly stating so, considered this case to be one of the \"extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 [should] apply.” See id. In the future, we would hope that those determining that both adjustments should apply to a particular sentence would specifically state the findings and reasons supporting their determination that the case is \"extraordinary” as contemplated by the Guidelines. . Once" }, { "docid": "23071039", "title": "", "text": "recognize that ‘[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.’” United States v. Gacnik, 50 F.3d 848, 853 (10th Cir.1995) (quoting U.S.S.G. § 3E1.1, comment, (n. 5)) (alteration in original). U.S.S.G. § 3E1.1 provides in relevant part as follows: “(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” Application Note 3 to U.S.S.G. § 3E1.1 provides that entry of a plea of guilty prior to the commencement of trial combined with admission of the conduct of the offense of conviction and any other additional relevant conduct constitutes significant evidence of acceptance of responsibility. Application Note 3 goes on to say, however, that this evidence may be “outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility,” and that the guilty plea does not entitle the defendant to an adjustment as a matter of right. Application Note 4 then advises that “[ejonduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary eases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” The district court denied the § 3E1.1 downward adjustment for acceptance of responsibility on the basis of Application Note 4, concluding that there were no exceptional circumstances warranting a § 3E1.1 adjustment in light of Hawley’s conduct of flight that gave rise to an upward enhancement for obstructing justice under § 3C1.1. Hawley argues that, if he loses his double jeopardy challenge to the upward adjustment for obstructing justice (as he has), this is nevertheless one of those “extraordinary cases” where an adjustment under both §§ 3C1.1 and 3E1.1 is appropriate. He relies principally on United States v. Hopper, 27 F.3d 378, 383 (9th Cir.1994), where the Ninth Circuit held that an enhancement for obstruction of justice is not inconsistent with an acceptance of responsibility adjustment “when a" }, { "docid": "19666732", "title": "", "text": "justice enhancement when the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1. Examples include “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so.” U.S.S.G. § 3C1.1 cmt. n. 4(a). Krasinski argues that the district court should not have relied on a translation of a recorded February 26, 2004 conversation between Krasinski and another inmate (not Ogonowski), as he contends the translation is inaccurate. But the district court did not rely on the February 26, 2004 conversation when it imposed the enhancement. Instead, it pointed to the conduct Krasinski admitted in the plea agreement and found that those admissions warranted the enhancement. Krasinski admitted in his plea agreement and confirmed during his change of plea hearing that he attempted to persuade Ogonowski to change his testimony. He further admitted that he threatened to have others harm Ogonowski if he testified against Krasinski, including a specific threat that anyone testifying against him would have his throat cut in Poland. These admissions were more than sufficient to support the obstruction of justice enhancement. The guidelines also provide for a two-level reduction, at the district court’s discretion, if the defendant “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). “When a sentencing court properly enhances a defendant’s offense level under § 3C1.1 for obstructing justice, ‘he is presumed not to have accepted responsibility.’ ” United States v. Ewing, 129 F.3d 430, 435 (7th Cir.1997) (quoting United States v. Larsen, 909 F.2d 1047, 1050 (7th Cir.1990)); see also U.S.S.G. § 3E1.1 n. 4 (“Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”). The district court recognized that it could find Krasinski accepted responsibility even after it imposed an obstruction of justice enhancement, and we do not find" }, { "docid": "9847608", "title": "", "text": "court refused to grant the adjustment, it did expressly take into account Lagasse’s guilty plea when fixing a sentence in the middle of the applicable guideline range, despite the government’s recommendation for the maximum imprisonment term. A two-level reduction in the offense level is warranted “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1. However, “[a] defendant who enters a guilty plea is not entitled to an adjustment [for acceptance of responsibility] as a matter of right.” Id. comment, (n.3); see also United States v. Royer, 895 F.2d 28, 29-30 (1st Cir.1990) (explaining that “a downward adjustment for acceptance of responsibility is not automati cally to be conferred upon every accused who pleads guilty”). While pleading guilty before trial and truthfully admitting the offense conduct will constitute “significant evidence” of acceptance of responsibility, “this evidence may be outweighed by conduct of the defendant that is inconsistent.” U.S.S.G. § 3E1.1, comment, (n.3). Only in “extraordinary cases” will the adjustment be appropriate where, as here, the defendant has received an obstruction of justice enhancement pursuant to § 3E1.1. Id. comment, (n.4). Other than referring to his challenge to the obstruction of justice enhancement, Lagasse does not indicate how his case might be “extraordinary” enough to allow the acceptance of responsibility adjustment. Because Lagasse’s ease is “ordinary” in that the obstructive conduct “indicates that the defendant has not accepted responsibility for his criminal conduct,” id., the denial of the adjustment was proper. See United States v. Wheelwright, 918 F.2d 226, 229 (1st Cir.1990). The district court alternatively found that Lagasse did not deserve the acceptance of responsibility adjustment because he was involved in an attempt to smuggle drugs into prison. At the sentencing hearing, an MDEA agent testified that on March 25, 1995, he went to the Maine Correctional Center to investigate an anonymous tip that Lagasse’s girlfriend, Grace Sheloske, would attempt to smuggle drugs into the prison that day. When Sheloske arrived at the prison, she told the agent that she was there to visit Lagasse and eventually admitted that she was concealing a small amount of" }, { "docid": "22327340", "title": "", "text": "of Responsibility The District Court, following the recommendation of the PSR, applied a two-level upward adjustment, pursuant to U.S.S.G. § 3C1.1 (2001), for the obstruction of justice charged in counts 19 through 21. Lessner does not contest this adjustment. The Court denied, however, Lessner’s request for a three-level reduction in the offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. Lessner contests this denial. We review factual findings underlying the denial of a Sentencing Guidelines reduction for acceptance of responsibility for clear error, and reverse only if we are left with a definite and firm conviction that a mistake has been committed. United States v. Boone, 279 F.3d 163, 193 (3d Cir.2002); United States v. Felton, 55 F.3d 861, 864 (3d Cir.1995). Section 3El.l(a) of the 2001 Guidelines provides that a district court may grant a two-level reduction in the offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense”; an additional one-level reduction is available under subsection (b) if certain conditions are met. The § 3El.l(a) reduction contemplates a defendant “truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G. § 3E1.1 cmt. n. 1(a). “[A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” Id. Entry of a guilty plea will constitute “significant evidence” of acceptance of responsibility, although it will not entitle the defendant to an adjustment “as a matter of right.” Id. cmt. n. 3; see also United States v. McDowell, 888 F.2d 285, 292 n. 2 (3d Cir.1989) (stating that sentencing court must consider “the totality of the situation” when determining acceptance of responsibility). Of significance here, “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”" }, { "docid": "6532533", "title": "", "text": "of an equally justified aggravating role enhancement. Thus, notwithstanding the imbrication of which appellant complains, the district court acted properly in embracing the four-level upward adjustment described in section 3B1.1 rather than settling for the two-level adjustment described in section 3B1.3. III. ACCEPTANCE OF RESPONSIBILITY Appellant’s remaining challenge concerns acceptance of responsibility. U.S.S.G. § 3El.l(a) provides for a basic two-level reduction in the offense level if a defendant accepts responsibility as that phrase is used in the guidelines. Section 3El.l(b) makes provision for an additional one-level reduction if the defendant qualifies for the initial decrease under subsection (a), has an offense level of 16 or more, and either: “(1) timely provid[es] complete information to the government concerning his own involvement in the offense; or (2) timely notifies] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.” U.S.S.G. § 3El.l(b). A different guideline, U.S.S.G. § 3C1.1, provides for a two-level increase in the offense level for obstructing or impeding the administration of justice. A natural tension arises between these two guidelines when a defendant obstructs justice, yet professes to accept responsibility. In such eases, the defendant faces an uphill, but not necessarily an impossible, climb. While the Sentencing Commission recognizes that conduct requiring an enhancement under section 3C1.1 “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct,” U.S.S.G. § 3E1.1, comment. (n. 4), it acknowledges in the same breath that there are “extraordinary eases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” Id. In the instant case, the district court invoked U.S.S.G. § 3C1.1 and imposed a two-level enhancement for obstruction of justice as a result of appellant’s campaign to destroy evidence. The court nevertheless found that appellant had accepted responsibility, and, although troubled by the obstruction of justice, found his case to be extraordinary. Then, without any analysis of the requirements set forth in section 3El.l(b), the court gave appellant a two-level rather than a three-level acceptance-of-responsibility credit. The court offered no explanation of," }, { "docid": "2405799", "title": "", "text": "sufficient to invoke § 3C1.1. As the commentary now reads, “providing a false name ... at arrest [does not warrant application of this enhancement] except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” U.S.S.G. § 3C1.1, comment, (n. 4(a)). Shortly after he was arrested, and prior to booking, Shores gave police his real name. The Government has not articulated any evidentiary basis for finding that Shores’s initial use of a false name resulted in a significant hindrance to the investigation and we can find none in the record. We therefore hold that Shores’s sentence should not have been enhanced under § 3C1.1. 4. Acceptance of Responsibility Shores argues that the court erred in not reducing his offense level by two levels in light of his acceptance of responsibility. Shores contends that there is no factual basis in the record for the denial of his request. However, this court has held that the burden of proving entitlement to a reduction under this section is on the defendant. United States v. Wallace, 904 F.2d 603, 604 (11th Cir.1990). Shores points to his admission of involvement in the crime. His admission, however, does not necessarily amount to an “affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3E1.1. Moreover, Shores continued to blame his involvement on others. Shores does not point out anything else in the record indicating his acceptance of responsibility. ’ “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility_ [Her] determination ... is entitled to great deference on review and should not be disturbed unless it is without foundation.” U.S.S.G. § 3E1.1, comment, (n. 5); United States v. Campbell, 888 F.2d 76, 78 (11th Cir.1989), cert. denied, 494 U.S. 1032, 110 S.Ct. 1484, 108 L.Ed.2d 620 (1990). The district court’s finding that Shores failed to accept responsibility is not clearly erroneous. V. CONCLUSION There being no error in the court’s admission of similar act evidence, Shores conviction is AFFIRMED. We find no error in the court’s assessment of a three-level adjustment for" }, { "docid": "23174934", "title": "", "text": "by admitting to kidnapping Showalter and that the dispute about raping her was “a sentencing issue [which] should not have precluded the acceptance reduction.” Appellant’s Br. at 30-31. The prosecution counters that the defendant did not merit the reduction because he received the obstruction of justice enhancement and because his “implausible version” of the kidnapping refuted his acceptance. Although a guilty plea “will constitute significant evidence of acceptance of responsibility^] this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.” U.S.S.G. § 3E1.1, comment, (n. 3). A defendant may not warrant the adjustment if he falsely denies relevant conduct for which he is accountable. U.S.S.G. § 3E1.1, comment, (n. 1(a)). The defendant bears the burden of proving his entitlement to this reduction. United States v. Cruz, 946 F.2d 122, 126 (11th Cir.1991). This Court reverses rulings on such matters only if clearly erroneous. United States v. Query, 928 F.2d 383, 386 (11th Cir.1991). The defendant admitted to kidnapping Showalter, but his assertion that Showalter consented to sexual intercourse is inconsistent with his acceptance of responsibility. See U.S.S.G. § 3E1.1, comment, (n. 1(a) & 3). All told, the defendant did not satisfy the burden of proving his entitlement to the reduction; the district court was thus not clearly erroneous in refusing to give it. C. The defendant contends that the district court erred in enhancing his base of fense level for obstruction of justice. The court based that enhancement, in part, on the defendant’s false testimony at sentencing. The defendant argues that the court failed to make specific findings of perjury. The government responds that particularized findings are not necessary when the sentencing court generally finds the testimony perjurious. Section 3C1.1 of the Sentencing Guidelines allows an offense level increase if the defendant committed perjury, which means giving “false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993). Although separate and clear" }, { "docid": "19666733", "title": "", "text": "that anyone testifying against him would have his throat cut in Poland. These admissions were more than sufficient to support the obstruction of justice enhancement. The guidelines also provide for a two-level reduction, at the district court’s discretion, if the defendant “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). “When a sentencing court properly enhances a defendant’s offense level under § 3C1.1 for obstructing justice, ‘he is presumed not to have accepted responsibility.’ ” United States v. Ewing, 129 F.3d 430, 435 (7th Cir.1997) (quoting United States v. Larsen, 909 F.2d 1047, 1050 (7th Cir.1990)); see also U.S.S.G. § 3E1.1 n. 4 (“Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”). The district court recognized that it could find Krasinski accepted responsibility even after it imposed an obstruction of justice enhancement, and we do not find its decision not to do so clearly erroneous. Krasinski’s threats against Ogonowski were serious. And even though they took place before he pled guilty, a defendant is not entitled to an acceptance of responsibility reduction merely for pleading guilty. See United States v. Jones, 52 F.3d 697, 701 (7th Cir.1995). Krasinski pled guilty only after his attempts to obstruct justice failed, and the district court was justified in concluding that his ease was not an extraordinary one. D. Reasonableness Finally, Krasinski maintains that his 292-month sentence is unreasonable. We presume that a sentence within the properly calculated guidelines range is rea sonable, United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005), and Krasin-ski’s sentence is at the low end of this range. In arriving at the sentence it did, the district court acknowledged Krasin-ski’s character letters and lack of criminal history. In light of the scale of the scheme and Krasinski’s threats against a witness, however, the district court decided that the 292-month sentence was appropriate to meet the goals expressed in 18 U.S.C." }, { "docid": "15184469", "title": "", "text": "v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973)). The trial court did not err in using the 109.09 kilograms of marijuana as a basis for Tremelling’s sentence. II. Acceptance of responsibility Tremelling argues that the court erred in denying him a three-point reduction in his offense level for acceptance of responsibility pursuant to § 3E1.1. In support of his contention that he is entitled to such a reduction, he points to the following events: he pleaded guilty; cooperated with the government; and provided the DEA with information which resulted in a conviction. He argues that he should not have been denied the reduction simply because he absconded prior to sentencing. If a defendant “clearly demonstrates acceptance of responsibility for his offense,” the sentencing guidelines instruct the district court to decrease the defendant’s offense level by two and possibly three points. U.S.S.G. § 3El.l(a) and (b). Because of the district court’s unique position to evaluate whether the defendant has demonstrated acceptance of responsibility, we review such a determination under a standard of review more deferential than that of clear error. United States v. Diaz, 39 F.3d 568, 571 (5th Cir.1994). The defendant bears the burden of proving that he is entitled to the downward adjustment. United States v. Kinder, 946 F.2d 362, 367 (5th Cir.1991), cert. denied, — U.S. -, -, 112 S.Ct. 1677 & 2290, 118 L.Ed.2d 394, 119 L.Ed.2d 214 (1992). Tremelling received a two-point upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1 for absconding. Tremelling does not challenge this adjustment, which is authorized by the guidelines for willfully failing to appear. See § 3C1.1, comment. (n. 3(e)). “Conduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” Section 3E1.1, comment. (n. 4). Tremelling argues that his absconding should not have automatically resulted in two extra points for obstruction of justice and no reduction for acceptance of responsibility. However, as quoted above," }, { "docid": "2770562", "title": "", "text": "perjury after defendant gave testimony at suppression hearing that directly conflicted with the testimony of the federal officers). The guidelines allow for a two-level reduction in a defendant’s offense level if “the defendant clearly demonstrates an acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1. However, the guideline provides also that: Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and SEl.l apply. U.S.S.G. § 3E1.1 application note 4 (emphasis added). Thus, once the sentencing judge determined that Yusuff had committed an obstruction of justice, she was not qualified for a reduction in her offense level for “acceptance of responsibility.” Yusuff argues that her situation is “extraordinary” and that she should receive a reduction for acceptance of responsibility, even though she obstructed justice with her perjury. However, the district judge refused to find her situation “extraordinary” and we review his decision for clear error. See United States v. Girardi 62 F.3d 943, 947 (7th Cir.1995). Yusuff argues that because she cooperated with the federal authorities and admitted to the substantive offense of possessing heroin her situation is extraordinary. However, as the district court found, Yusuff maintained throughout the proceedings that she had explicitly refused to give consent to the search. YusufPs statement is material, because, if true, the pat down search was unconstitutional and the evidence against her would be suppressed. As discussed above, the district court reviewed the testimony of the witnesses and concluded that the officers’ version of the encounter was more truthful. Yusuff s situation of admitting guilt, but vigorously conflicting the testimony of the federal officers in order to attempt to suppress the evidence is not an “extraordinary” situation that requires an offense level reduction for acceptance of responsibility. See United States v. Lallemand, 989 F.2d 936 (7th Cir.1993) (affirming reduction where defendant’s orders to an agent to destroy evidence occurred before arrest and, after arrest, defendant did all he could to cooperate with" }, { "docid": "22315111", "title": "", "text": "of any other potential witnesses. Surely someone with Amedeo’s experience as a criminal defense attorney would foresee the scope of the investigation into Rozelle’s death. Indeed, Ame-deo’s instructions to Costanzo indicate that Amedeo anticipated the very direction of the investigation. Accordingly, we conclude that the enhancement pursuant to § 3C1.1 was proper. E. Acceptance of Responsibility Next, Amedeo contends that the district court erroneously deprived him of a three-level downward adjustment for acceptance of responsibility. U.S.S.G. § 3E1.1(a) provides: “If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” Moreover, the offense level may be decreased by an additional level if the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently ... Id. at § 3B1.1b). We review the district court’s determination of acceptance of responsibility only for clear error. United States v. Dodd, 111 F.3d 867, 870 (11th Cir.1997). “A district court’s determination that a defendant is not entitled to acceptance of responsibility will not be set aside unless the facts in the record clearly establish that a defendant has accepted personal responsibility.” United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir.1999). The Guidelines provide, “Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1, cmt. n. 4; see also Arguedas, 86 F.3d at 1059-60 (adjustment for acceptance of responsibility not appropriate where defendant repeatedly made materially false statements to authorities and district court, resulting in enhancement for obstruction of justice). In light of our affirmance of the enhancement for obstruction of justice, Amedeo would be entitled to" }, { "docid": "2770561", "title": "", "text": "to be credible. Thus, the court determined that Yusuff had committed perjury at the suppression hearing, attempting to establish that the officers had violated the Fourth Amendment. The defendant attempts to minimize the quality of her false testimony by arguing that cultural and language differences prevented her from fully understanding her rights. Strangely, Yusuff testified at the hearing that she clearly told Officer Martin that she did not agree to the search, which was in direct contrast to Officer Martin’s testimony. Because of the conflict in testimony, there was no clear error in the judge’s finding that Yusuff had lied and thus attempted to obstruct justice. See United States v. Easley, 977 F.2d 283, 286 (7th Cir.1992) (affirming obstruction of justice enhancement where defendant’s testimony at trial conflicted with the testimony of a federal agent); United States v. Soto-Lopez, 995 F.2d 694 (7th Cir.1993) (affirming obstruction enhancement after defendant gave testimony in conflict to federal agents who had conducted an airport drug search); United States v. Osuorji 32 F.3d 1186 (7th Cir.1994) (affirming enhancement for perjury after defendant gave testimony at suppression hearing that directly conflicted with the testimony of the federal officers). The guidelines allow for a two-level reduction in a defendant’s offense level if “the defendant clearly demonstrates an acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1. However, the guideline provides also that: Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and SEl.l apply. U.S.S.G. § 3E1.1 application note 4 (emphasis added). Thus, once the sentencing judge determined that Yusuff had committed an obstruction of justice, she was not qualified for a reduction in her offense level for “acceptance of responsibility.” Yusuff argues that her situation is “extraordinary” and that she should receive a reduction for acceptance of responsibility, even though she obstructed justice with her perjury. However, the district judge refused to find her situation “extraordinary” and we review his decision for clear" }, { "docid": "22327341", "title": "", "text": "“truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G. § 3E1.1 cmt. n. 1(a). “[A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” Id. Entry of a guilty plea will constitute “significant evidence” of acceptance of responsibility, although it will not entitle the defendant to an adjustment “as a matter of right.” Id. cmt. n. 3; see also United States v. McDowell, 888 F.2d 285, 292 n. 2 (3d Cir.1989) (stating that sentencing court must consider “the totality of the situation” when determining acceptance of responsibility). Of significance here, “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” § 3E1.1 cmt. n. 4. The sentencing court’s findings in this regard flow from its “unique position to evaluate a defendant’s acceptance of responsibility” and are “entitled to great deference on review.” Id. cmt. n. 5. At the December 19, 2005 sentencing hearing, following extensive testimony and argument, the District Court denied the § 3E1.1 adjustment, finding that Lessner had failed to demonstrate the existence of an “extraordinary case” warranting adjustments under both §§ 3C1.1 and 3E1.1. (J.A. at 491.) Lessner contends that this was error. Citing pre-Booker cases from the Courts of Appeals for the Sixth and Ninth Circuits, she posits that when the obstruction is limited to the very early stages of a criminal proceeding, and a defendant subsequently accepts responsibility, the case is “extraordinary” within the meaning of application note 4. See United States v. Gregory, 315 F.3d 637 (6th Cir.2003); United States v. Hopper, 27 F.3d 378 (9th Cir.1994). One, albeit important, flaw in Lessner’s argument is that her obstructive conduct continued well beyond her actions on August 16, 2002. Two" } ]

[ { "docid": "15395871", "title": "", "text": "ROSE, Circuit Judge. The defendants in error, trading as Lamborn & Co., were plaintiffs below, and the plaintiff in error was the defendant. It - will tend to • clearness if they be designated by the positions they occupied in the trial court. The plaintiffs sued to recover upon á contract dated June 4, 1920, by which they sold to the defendant and the defendant bought from them 85 barrels of standard fine granulated sugar on the basis of 2© cents per pound, f. o. b. Savannah Refinery, Port Wentworth, Ga. The defendant accepted 28 barrels, but declined to take the balance, and the only question. riow open in the' case is as to the measure of damages applied by the court below in determining the amount for which it directed a verdict for the plaintiffs. The wording of the contract in the instant case was identical with that sued on in Bell v. Lamborn, 2 F.(2d) 205, decided by this court at the October term, 1924, in all matters legally material to the questions to he here passed upon. We .then held that, as the place of performance was Port Wentworth, Ga., the measure of damages upon the breach was that prescribed by the law of Georgia, even if it be assumed that there was any difference between the applicable law of that, state and that of North Carolina upon which ‘point we intimate no opinion. It is unnecessary -to repeat what we have said in the earlier case, which answers a number of the contentions so ably made by the learned counsel . of the defendant; but, of -course, the-question whether there was unreasonable delay of the plaintiffs in reselling dopendsupon the particular facts of this case. One-half of the sugar as to which this controversy arose was to be delivered in- August or September, and the other half in September or October, the plaintiffs hav ing the option of shipping during the periods mentioned; that is to say, they were not bound by the contract to ship any of it before September 30. Plaintiffs on the 18th" } ]

[ { "docid": "10319258", "title": "", "text": "or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States .... Section 1607 provides that: In any action brought by a foreign state, or in which a foreign state intervenes, in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim— (c) to the extent that the counterclaim does not seek relief exceeding in amount or different in kind from that sought by the foreign state. We need spend little time discussing the claim that section 1605(a)(2) is applicable to this case. Plaintiffs argue that because they seek to offset their debt to EN-CAR with their loss from the nationalization the “controversy is clearly an action based upon the commercial activity of defendants carried on within the United States and jurisdictional immunity cannot attach under § 1605(a)(2).” We disagree. There is no “controversy” about plaintiffs’ obligation to pay for the beef. The commercial transaction involved, the beef shipment, has nothing to do with this lawsuit beyond the fact that it gave rise to the debt plaintiffs seek to offset. The basis of this lawsuit is the nationalization of Empacadora, which is a quintessential Government act. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Empresa Cubana Exportadora, Inc. v. Lamborn & Co., 652 F.2d 231 (2d Cir.1981); Carey v. National Oil Corp., 453 F.Supp. 1097, 1102 (S.D.N.Y.1978), aff’d, 592 F.2d 673 (2d Cir.1979). Plaintiffs cannot transform this governmental dispute into a commercial dispute through the simple expedient of attempting to offset an unrelated commercial debt. Equally unavailing is plaintiffs’ claim that section 1607(c) removes immunity in this case. Plaintiffs recognize that 1607(c), on its face, requires that the lawsuit be brought by the foreign state and that the counterclaim be raised by the defendants to that suit. Despite this seemingly insurmountable obstacle plaintiffs claim that requiring them to wait until actually sued" }, { "docid": "20075359", "title": "", "text": "Lighterage Corporation, 19 F.(2d) 286, 287 (C. C. A. 2). For an instance of the same principle applied to federal equity courts when diversity of citizenship is the basis of jurisdiction, see Haarlem Terminals, Inc., v. Moehlenpah et al. (D. C.) 43 F.(2d) 205, 206. II. The proper method, therefore, of invoking the third party practice sanctioned by the Fifty-Sixth Rule in Admiralty (28 USCA § 723) is for the petitioner who files an impleading petition to set forth therein such facts as will show either: (1) A cause of action within admiralty jurisdiction between the impleaded party and the libelant, The Boise Penrose (D. C.) 15 F.(2d) 70, 72; Luckenbach S. S. Co. v. Central Argentine Co. (D. C.) 298 F. 344, 345; or (2) a claim for indemnity against the impleaded party and in favor of the petitioner which comes within admiralty jurisdiction. Lamborn & Co. v. Compania Maritima Del Nervion (D. C.) 19 F.(2d) 155, 157; Soderberg v. Atlantic Lighterage Corporation, 19 F.(2d) 286, 287 (C. C. A. 2); Luckenbach S. S. Co. v. Gano Moore Co. (D. C.) 298 F. 343, 344; Simmons Transp. Co. v. Alpha Portland Cement Co. (D. C.) 286 F. 955, 958, 959; Aktieselskabet Fido v. Lloyd Braziliero, 283 F. 62, 72-74 (C. C. A. 2) affirming (D. C.) 267 F. 733, certiorari denied 260 U. S. 737, 43 S. Ct. 97, 67 L. Ed. 489; The Goyaz (D. C.) 281 F. 259, 260, 261. Here the petitioner has failed to comply with either of these requirements. Hence the petition does not show any reason why the third parties impleaded should have been brought into an admiralty suit. III. The through hill of lading which constituted the contract of carriage herein involved and on which the libel is based provided for two stages of transportation: The first, from Kansas City to the Port of New York; and, the second, from New York to Koenigsberg, East Prussia. The contract was as divisible between these two stages as words could make it. The land transportation was to be performed by a series of connecting" }, { "docid": "20075358", "title": "", "text": "writs is a judicial and not a merely administrative act. Even at- the present time, in many districts, I understand, such third party writs as are here involved are not issued unless specifically allowed by a judge. For a recent case in which leave was denied in this district see Lamborn & Co. v. Compania Maritima Del Nervion (D. C.) 19 F.(2d) 155, 157. It is clearly necessary, therefore, that there must he a rationale set forth in the petition which will justify a court in adding to the litigation parties not attacked by the libelant. Otherwise the libelant might have his suit unnecessarily delayed, and run the chance of being involved in expenses and mulcted in costs not of his risking. In view of the limited jurisdiction of our admiralty courts, it is also obvious that the subject-matter of the issues which may be involved between the several parties, when the personnel of the suit is finally fixed, must he such1 as come within the judicial competence of the admiralty courts. Soderberg v. Atlantic Lighterage Corporation, 19 F.(2d) 286, 287 (C. C. A. 2). For an instance of the same principle applied to federal equity courts when diversity of citizenship is the basis of jurisdiction, see Haarlem Terminals, Inc., v. Moehlenpah et al. (D. C.) 43 F.(2d) 205, 206. II. The proper method, therefore, of invoking the third party practice sanctioned by the Fifty-Sixth Rule in Admiralty (28 USCA § 723) is for the petitioner who files an impleading petition to set forth therein such facts as will show either: (1) A cause of action within admiralty jurisdiction between the impleaded party and the libelant, The Boise Penrose (D. C.) 15 F.(2d) 70, 72; Luckenbach S. S. Co. v. Central Argentine Co. (D. C.) 298 F. 344, 345; or (2) a claim for indemnity against the impleaded party and in favor of the petitioner which comes within admiralty jurisdiction. Lamborn & Co. v. Compania Maritima Del Nervion (D. C.) 19 F.(2d) 155, 157; Soderberg v. Atlantic Lighterage Corporation, 19 F.(2d) 286, 287 (C. C. A. 2); Luckenbach S. S." }, { "docid": "6295311", "title": "", "text": "ROSE, Circuit Judge. The plaintiffs in error were defendants below and the defendants in error were plaintiffs. It will tend to clearness if they be here described by the positions they occupied in the trial court. Under a contract which, except as to names, dates, and amounts, was in legal effect identical with that passed upon in Bell v. Lamborn, 2 F.(2d) 205, decided by this court at the October term, 1924, the defendants bought and the plaintiffs sold 150 barrels of standard fine granulated sugar. The defendants accepted delivery of but 50 barrels and refused to take or pay for the remainder. The plaintiffs, after notice, resold the unaccepted balance of 100 barrels, and brought this suit for the difference between the contract price and the net proceeds realized on the resale. Upon the conclusion of the testimony a verdict was directed in favor of the plaintiffs. The defendants pleaded that the making of the contract was procured by the fraudulent representations of the plaintiffs, but, as the court below properly held, they did not offer any evidence legally sufficient to prove the existence of any such fraud. The record does not make it clear whether the meeting of the minds of the parties to the contract was in Georgia or North Carolina, but in any event, as we held in Bell v. Lamborn, supra, as the contract was to be performed in Georgia, it was a Georgia contract, and the instructions of the court as to the measure of damages were in entire harmony with the views we expressed in that ease, even if it be assumed that in this respect there is any difference between the law of the two commonwealths, a question upon which we do not intimate any opinion. By the terms of the contract one-half of the sugar now in controversy was to be delivered during August or September and the other one-half during September or October. During the time specified, shipment was to be at seller’s option. Until the 30th of September, the plaintiffs were not bound to treat as final any statement" }, { "docid": "23220584", "title": "", "text": "v. Richardson, 10 F.(2d) 467, 473 (C. C. A. 8th, 1936); Lamborn v. Cleveland Trust Co., 29 F. (2d) 46 (C. C. A. 6th, 1928); Second National Bank of Allegheny v. Lash Corp., 299 F. 371 (C. C. A. 3d, 1924). There are, however, other cases in which there was held to be an effective waiver, even though there was no possibility apparent that the plaintiff might have been misled or might have removed the objections had they been called to his attention. Luckenbach S. S. Co. v. W. R. Grace & Co., 267 F. 676 (C. C. A. 4th, 1920), certiorari denied 254 U. S. 644, 41 S. Ct. 14, 65 L. Ed. 454; Bank of Taiwan v. Union Nat. Bank of Philadelphia, 1 F. (2d) 65 (C. C. A. 3d, 1924); Grimwood v. Munson S. S. Line, 273 F. 166 (C. C. A. 2d, 1921); Robb v. Crawford, 56 App. D. C. 394, 16 F.(2d) 339 (1926). It has been suggested that there may be a proper distinction between eases in which the ground asserted to have been waived goes to the validity of the contract and those in which it concerns only the circumstances of the breach. See Boehmer Coal Co. v. Burton Coal Co., 2 F. (2d) 526, 529 (C. C. A. 8th, 1924). In the relevant cases in this circuit, the requirement that the plaintiff should have been misled to his damage has not been expressly stated, but it appeared from the facts that there ■was some possibility that he might have cured the defeets had they been called to his attention, although perhaps not within the time limits of the contract. Poison Logging Co. v. Neumeyer, 229 F. 705 (C. C. A. 9th, 1916); Garcia & Maggini Co. v. Washington. Dehydrated Food Co., 294- F. 765, 768 (C. C. A. 1924); George A. Moore & Co. v. Mathieu, 13 F.(2d) 747 (C. C. A. 1926). 'Whether or not the “waiver of other defenses is effective without elements of estoppel, we need not now determine. The court’s finding that defendant waived all other defenses, a" }, { "docid": "22733934", "title": "", "text": "Stat. 11, 114; Rev. Stat. § 3174, U. S. C., Tit. 26, § 93. This action was taken pursuant to § 1309, which authorized the Commissioner, with the approval of the Secretary, “ to make all needful rules and regulations for the enforcement of the provisions of this Act.” These public letters from the Commissioner to the Collectors “and others concerned” were issued February 13, 1919; February 27, 1919. See also letters of April 14, 1919, October 3, 1919, and March 17, 1920; and Manual (1920) for the information and guidance of Collectors, §§ 627, 628, This period of limitation on assessments of taxes under the 1918 Act was continued in the later Revenue Acts. June 2,1924, c.. 2.34, §§ 277 (a) (2), 278 (c), 43 Stat. 253, 299, 300; February 26, 1926, c. 27, §§ 277 (a) (3), 278 (c), 44 Stat, 9, 58, 59. See Appeal of National Refining Co., 1 B. T. A. 236; Appeal of Mabel Elevator Co., 2 B. T. A. 517; United States v. National Refining Co., 21 F. (2d) 464; United States v. Mabel Elevator Co., 17 F. (2d) 109; Union Pac. R. Co. v. Bowers, 24 F. (2d) 788; National Tank & Export Co. v. United States, 35 F. (2d) 381. Attention is called to Article 407 of Internal Revenue Regulations 45, which provided that: “ In lack of a prescribed form a statement made by a taxpayer disclosing his gross income -and the deductions therefrom may be accepted as a tentative return, and if filed within the prescribed time,- a return so made will relieve the taxpayer from liability to penalties, provided that without unnecessary delay such a tentative return is replaced by a return made on the proper form.” But obviously Form 1031T was not a tentative return within the. meaning of tins Article. It did not even purport to be a “ statement disclosing gross income'and the deductions therefrom.” To sustain the argument that assessment could be made- on the basis of Form 1031T, counsel cited only Matteawan v. Commissioner, 14 B. T. A. 789 and Lamborn v. Commissioner," }, { "docid": "21744751", "title": "", "text": "of such printed contract.” ' Two questions are presented in the case: (1) Whether the contract was rendered invalid by the statute because parts of it were not printed in the size of type required; and (2) whether recovery should not be denied on the theory that the statute, like the fourth section of the statute of frauds, relates to the remedy and prevents the maintenance of an action on a contract which does not meet its requirements. We think that both of these questions must be answered in the negative. For the reasons hereinafter pointed out, we do not think that the purpose of the statute was to invalidate absolutely a contract not printed in the size of type required, nor do we think that such is its reasonable interpretation; but quite apart from this, we are satisfied that the statute cannot affect the validity of the contract in question for the reason that with respect to matters affecting the formalities of execution it is not governed by the law of Virginia, even if it be assumed that it was to be performed in that state. The learned District Judge correctly held that it was executed in California. It did not become a binding contract until signed by the plaintiff in California, and the rule applies that a contract is deemed to be executed in the state where the final act is done which is necessary to make it binding. Bell v. Lamborn (C. C. A. 4th) 2 F.(2d) 205; Tilden v. Blair, 21 Wall. 241, 22 L. Ed. 632; Equitable Life Society v. Clements, 140 U. S. 226, 11 S. Ct. 822, 35 L. Ed. 497; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; Williston on Contracts, Vol. 1, Sec. 97; Minor on Conflict of Laws, Sec. 157. And, as the contract was executed in California, its formal validity — i. e., its validity with respect to such matters as the formalities of execution, requirements as to wilting, etc., — is to be determined by the law of California-, The rule with respect thereto is well" }, { "docid": "14059363", "title": "", "text": "1068; De Stefano v. Associated Fruit Co., 318 Ill. 345, 149 N.E. 284; Granette Products Co. v. Arthur H. Neumann & Co., 200 Iowa, 572, 203 N. W. 935, 938, 205 N.W. 205; Rose v. Maas Bros., 147 Ark. 275, 227 S.W. 386, 387; Miller v. Germain S. & P. Co., supra; Ross v. Northrup, King & Co., supra; Hewitt v. John Week Lumber Co., 77 Wis. 548, 46 N.W. 822, 825; Steidtmann v. Joseph Lay Co., 234 Ill. 84, 84 N.E. 640, 642; Douglas & Mizell v. Ham Turpentine Co., 210 Ala. 180, 97 So. 650, 652; Robinson v. United States, 13 Wall. 363, 20 L.Ed. 653; Kockos v. C. Itoh & Co. (C.C.A. 9) 288 F. 557, 558; C. M. McMahen & Sons v. Louisville & N. R. Co. (C.C.A. 5) 16 F.(2d) 698, 699; Alabama Chemical Co. v. International A. Corporation (C.C.A. 5) 35 F.(2d) 907, 909;. Lamborn v. Blattner (C.C.A. 5) 6 F.(2d) 435, 437, ,438; Williston on Contracts, vol. 2, §§ 656, 661. Whitcomb v. Oller, 41 Okl. 331, 137 P. 709, 710; Chicago, R. I. & P. Ry. Co. v. Newburn, 39 Okl. 704, 136 P. 174, 176; United States F. & G. Co. v. Shirk, 20 Old. 576, 95 P. 218, 220; Pittsburgh, C. & St. L. R. Co. v. Keokuk Bridge Co., 131 U.S. 371, 381, 9 S.Ct. 770, 33 L.Ed. 157. Restatement of Law, Agency, § 94; section 9434 Okl.St.1931; Mechem on Agency (2d Ed.) vol. 1, § 453; Ellis v. Simmons (C.C.A. 5) 11 F.(2d) 596, 597; Philadelphia, W. & B. R. Co. v. Cowell, 28 Pa. 329, 70 Am.Dec. 128; Heyn v. O’Hagen, 60 Mich. 150, 26 N.W. 861, 863; Renland v. First Nat. Bank of Grass Range, 90 Mont. 424, 4 P.(2d) 488; Ankeny v. Young Bros., 52 Wash. 235, 100 P. 736, 738, 739. Mechem on Agency (2d Ed.) vol. 1, § 395; Amazon Fire I. Co. v. Bond, 65 Okl. 224, 165 P. 414, 418; Thorp Oil & Specialty Co. v. Home Oil Refining Co., 79 Okl. 225, 192 P. 573, 574; Guaranty Trust Co. of" }, { "docid": "14059362", "title": "", "text": "the trial judge. His broad experience in the field of the law pertaining to oil and gas and his intimate • knowledge of the practical problems which arise in the producing and marketing of crude petroleum oil, give added force to his conclusions. The judgment is affirmed. Ross v. Northrup, King & Co., 156 Wis. 327, 144 N.W. 1124, 1128; A. J. Tower Co. v. Southern Pac. Co., 184 Mass. 472, 69 N.E. 348; Cormier v. II. II. Martin Lumber Co., 98 Wash. 463, 167 P. 1105, 1106; Miller v. Germain S. & P. Co., 193 Cal. 62, 222 P. 817, 819; 32 A.L.R. 1215; Plover Savings Bank v. Moodie, 135 Iowa, 685, 110 N.W. 29, 31, 113 N.W. 476; Ankeny v. Young Bros., 52 Wash. 235, 100 P. 736, 738; Western Petroleum Co. v. Tidal Gasoline Co. (C.C.A. 7) 284 F. 82, 84; Silverstein v. Michau (C.C.A. 2) 221 F. 55, 56; Williston on Contracts, vol. 2, § 661. Cherokee Grain Co. v. Elk City Flour Mills Co., 78 Okl. 120, 188 P. 1067, 1068; De Stefano v. Associated Fruit Co., 318 Ill. 345, 149 N.E. 284; Granette Products Co. v. Arthur H. Neumann & Co., 200 Iowa, 572, 203 N. W. 935, 938, 205 N.W. 205; Rose v. Maas Bros., 147 Ark. 275, 227 S.W. 386, 387; Miller v. Germain S. & P. Co., supra; Ross v. Northrup, King & Co., supra; Hewitt v. John Week Lumber Co., 77 Wis. 548, 46 N.W. 822, 825; Steidtmann v. Joseph Lay Co., 234 Ill. 84, 84 N.E. 640, 642; Douglas & Mizell v. Ham Turpentine Co., 210 Ala. 180, 97 So. 650, 652; Robinson v. United States, 13 Wall. 363, 20 L.Ed. 653; Kockos v. C. Itoh & Co. (C.C.A. 9) 288 F. 557, 558; C. M. McMahen & Sons v. Louisville & N. R. Co. (C.C.A. 5) 16 F.(2d) 698, 699; Alabama Chemical Co. v. International A. Corporation (C.C.A. 5) 35 F.(2d) 907, 909;. Lamborn v. Blattner (C.C.A. 5) 6 F.(2d) 435, 437, ,438; Williston on Contracts, vol. 2, §§ 656, 661. Whitcomb v. Oller, 41 Okl. 331, 137" }, { "docid": "6862927", "title": "", "text": "Lamborn & Co., 267 U. S. 248, 254, 45 S. Ct. 300, 69 L. Ed. 597; Hardy-Burlingham Mining Co. v. Baker, supra; C., M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 478, 46 S. Ct. 504, 70 L. Ed. 1041; Davlin v. Henry Ford & Son, Inc., 20 F.(2d) 317, 319 (C. C. A. 6). Assuming that the syphilitic poison or the mustard gas either separately or in combination was within the life of the contract the originating cause of appellee’s blindness, it cannot logically follow that total and permanent disability occurred within this same period. The atrophy of the optic nerves, like many other nervous diseases, was progressive, and the rapidity of its course from cause to effect was not a matter of inference, but rather of evidence, to be determined upon a consideration of all attending facts and circumstances. The insurance protected against disability during its term, not against casualty or disease, and appellant can be held only to the extent of its contract. Birmingham v. U. S., 4 F.(2d) 508, 509 (C. C. A. 8); U. S. v. McPhee, supra. See, also, White v. U. S., supra; Helmholz v. Horst, 294 F. 417, 421 (C. C. A. 6). There was no error in the admission of appellee’s Exhibits H and I. These exhibits consisted of two reports of physical examinations of appellee each dated April 30, 1923, and signed by physicians of the Bureau. Only those parts of the reports which gave specific findings of fact were permitted in evidence. The examinations were made under the authority of the Director (title 38, e. 10, § 426, U. S. Code [38 USCA § 426]), and were taken from the Bureau’s files pertaining to appellee. It is insisted that these reports are (1) confidential and (2) hearsay. We cannot agree. They are not confidential or privileged when required to be produced in any suit or proceeding pending in the United States court (title 38, c. 10, § 456, clause (b), U. S. Code, 38 US CA § 456(b); Gonzalez v. U. S. [D. C.] 298" }, { "docid": "21744752", "title": "", "text": "it be assumed that it was to be performed in that state. The learned District Judge correctly held that it was executed in California. It did not become a binding contract until signed by the plaintiff in California, and the rule applies that a contract is deemed to be executed in the state where the final act is done which is necessary to make it binding. Bell v. Lamborn (C. C. A. 4th) 2 F.(2d) 205; Tilden v. Blair, 21 Wall. 241, 22 L. Ed. 632; Equitable Life Society v. Clements, 140 U. S. 226, 11 S. Ct. 822, 35 L. Ed. 497; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; Williston on Contracts, Vol. 1, Sec. 97; Minor on Conflict of Laws, Sec. 157. And, as the contract was executed in California, its formal validity — i. e., its validity with respect to such matters as the formalities of execution, requirements as to wilting, etc., — is to be determined by the law of California-, The rule with respect thereto is well stated by Prof. Minor in his work on Conflict of Laws, § 172, pp. 410, 411, as follows: “By the formal validity of a contract is meant the necessary compliance with the forms and ceremonies prescribed by law upon entering into certain contracts. It is evident that if the forms and ceremonies thus prescribed by the law of a state are essential to the validity of the contract, if entered into in that state, there can never have been any contract if those forms are wanting. Such matters relate to the making of the contract, and are therefore to be governed by the law of the situs of the making (the lex celebrationis). On the other hand, if the contract is entered into with all the forms required by the lex celebrationis, it is equally obvious that the, omission of some of the forms demanded by the law of the place of performance of the contract is immaterial. The law of the latter place manifestly only applies to contracts made there; to hold otherwise would" }, { "docid": "6896848", "title": "", "text": "blasting is irregular, and leaves projections inside the neat line which must be trimmed, and “overbreaks” or cavities outside the neat line which must be filled with cement. One of these overbreaks was in the roof at the scene of the accident. There is no dispute about the law governing the case. The plaintiff may recover if there was negligence on the part of the defendant, and not otherwise. White v. Chicago G. W. R. Co., (C. C. A. 8) 246 F. 427; Leonard v. Miami Min. Co. (C. C. A. 4) 148 F. 827. Any conflicts in the testimony-must be resolved in favor of plaintiff; when that is done, if there is any substantial evidence of negligence, the case must be submitted to the jury; if there is no such substantial evidence, as distinguished from a mere scintilla, the court should direct a verdict. Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720; Small Co. v. Lamborn & Co., 267 U. S. 248, 45 S. Ct. 300, 69 L. Ed. 597; Woolworth v. Davis (C. C. A. 10) 41 F.(2d) 342, 347. There are inescapable hazards connected with the construction of tunnels, as there are in mining and in the erection of bridges and great buildings. Those engaged in such work are not insurors against ae eident; they are obligated to take such precautions, and make such inspections, as experience has taught are necessary. The rule of law is aptly and .succinctly stated by Judge Walter H. Sanborn in Canadian Northern Ry. Co. v. Senske (C. C. A. 8) 201 F. 637, 642, as follows: “These authorities, and a multitude more, sustain the established rule that the standard of ordinary or reasonable care is that degree of care (1) which ordinarily prudent persons, (2) engaged in the same kind of business, (3) usually exercise under similar circumstances.” In that opinion, .the learned judge has gathered so many controlling authorities in support of his statement that further citation is needless. However, the Sixth Circuit (Judges Lurton, Severens, and Richards sitting) used language peculiarly appropriate" }, { "docid": "11972830", "title": "", "text": "was before or after the 1925 application. Viewing the entire evidence in the light most favorable to appellee, it is apparent that he has failed to sustain the burden of proving that he was totally and permanently disabled while the policy was in force. It was not enough to show that he could not continuously follow his pre-war occupation. It was necessary to prove with reasonable certainty that he could not continuously follow any substantially gainful occupation. The opinions of Drs. Lee and Whitfield were not based upon any concrete facts sufficient to reasonably support the conclusion reached, and they lacked probative force. The rule is well settled that in federal courts, if the evidence is not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly, notwithstanding there may be some slight evidence tending to support the claim of the plaintiff. Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780; Small Co. v. Lamborn & Co., 267 U. S. 248, 45 S. Ct. 300, 69 L. Ed. 597; St. L. & S. F. R. Co. v. Mills, 271 U. S. 344, 46 S. Ct. 520, 70 L. Ed. 979. There was -nothing before the court to warrant the submission of the ease to the jury. It was error to overrule the motion of defendant for an instructed verdict. The record in this ease consists of 108 printed pages. We deem it necessary to notice that in preparing the bill of exceptions no attempt was made to comply with our rule 10(2), which requires the testimony to be set forth in condensed and narrative form. It is the duty of counsel for appellant to prepare the bill of exceptions. In future we will feel free to enforce the rule by remanding the ease for compliance therewith, dismissing the appeal or imposing costs on counsel. Hughes v. Lodwick L. Co. (C. C. A.) 41 F.(2d) 225; Coxe v. Peck-Williamson Heating & Ventilating Co. (C. C. A.) 208 F. 409. Reversed and remanded." }, { "docid": "23131940", "title": "", "text": "of his patented candle convinces us that the square candle of his patent involved no inventive thought or practice. He followed precisely the teachings of the art as set forth by Lamborn. What he did was to take a coach candle of ordinary type as shown by Lamborn and draw it through a square mold, a thoroughly familiar process, and then equip it with a self-fitting base as directed by Lamborn. The effect of these several steps is disclosed in the following cuts: What Knapp did involved no inventive act. He took an ordinary coach candle, with its bell shaped tip, and simply changed the column from a round one into a square one, leaving the bell-shaped tip the same as before. In converting a round column into a square one, he followed precisely the teachings of the art as previously set forth by Eamborn. He did what any ordinary workmen would have done— drew a round candle through a square mold in accordance with a common practice. Then he provided it with a self-fitting base in accordance with the teachings of the'art since 1861. It is true that invention may reside in a new combination of old elements. Every new combination of old elements, however, is not patentable. But as this court said in Steffens v. Steiner, 232 Fed. 862, 147 C. C. A. 56: “The question in the ease at bar is not whether a design patent can he sustained, although each separate element in the design may be old, but it is whether what, has been done in assembling the old elements in the new designs rose in these particular cases to the level oí invention.” And in Strause Gas Iron Co. v. William M. Crane Co., 235 Fed. 126, 148 C. C. A. 620, this court again said: “The test for invention is to he considered the same for designs as for mechanical patents; i. e., was the new combination within the range of the ordinary routine designer?” In both of those cases this court held design patents void for want of invention. In what was" }, { "docid": "7596946", "title": "", "text": "Commissioner’s decision upon its abatement claim should not be satisfactory. There is no indication in this case that the parties anticipated any further assessment for 1918 but, on the contrary, they had in mind the Commissioner’s decision making final the jeopardy assessment that had already been made, which decision did not occur until October, 1926. At the time both consents were entered into the parties were endeavoring to ascertain whether the assessment of the additional tax for 1918, which had already been made, was correct and what portion, if any thereof, should be paid by the taxpayer. The case of Peerless Paper Box Manufacturing Co. v. Routzahn (D. C.) 22 F.(2d) 459, cited by plaintiff, is not in point. The court did not decide the question presented in this ease. The consent there involved related to 1917 and expired by limitation under the Commissioner’s ruling on April 1,1924. Since the credit which was in question was not made until after that date, the court held that the 1917 tax was barred and that the credit was unlawful. Neither does the decision of the United States Board of Tax Appeals in Lamborn et al., 13 B. T. A. 177, support plaintiff’s contention. In that case, the Board held that the consent in the ease of Arthur H. Lamborn extending the time for assessment and collection expired on June 16,1925, and the Commissioner’s determination was not' made until October 19, 1925. It might be argued that the provisions of section 278(e)(2) of the Revenue Act of 1924 (26 USCA § 1062 note) and the decision in Russell v. United States, 278 U. S. 181, 49 S. Ct. 121, 73 L. Ed. 255, had reference only to assessments completely perfected before June 2, 1924; that it was not intended to apply subdivision (e) (2) to jeopardy assessments prior to that date but not completed by due consideration and decision by the Commissioner until after June 2, 1924, in which ease the Board of Tax Appeals had jurisdiction to review the Commissioner’s decision. However, it is not necessary for us to consider this question." }, { "docid": "6226787", "title": "", "text": "are not what the opinion implies they are, and the other party is known to rely on the opinion. Authorities cited in note 35 L. R. A. 425; 12 R. C. L. 248; Pomeroy’s Equity Jurisprudence (4th Ed.) §§ 878, 904, 956. The defendant’s allegations here are not confined to such opinions expressed by the plaintiffs. The averment is that although plaintiffs knew the defendant was relying on them for information as to the supply of sugar and the sugar market, they knowingly made to the defendant the false statement that there was a great scarcity of sugar and that it was practically impossible to obtain a supply of this necessary article of eommereo. Added to this is the allegation that at the very time the plaintiffs were deceiving the defendant by these false statements of the supply of sugar into making the contracts sued on, they themselves in combination with others had accumulated great stores of sugar which enabled them to greatly increase the price. The defense of fraud stated in the answer is thus shown to be very different from expressions of opinion as to future market prices or other matters depending on unknown contingencies as in Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166; Southern Development Co. v. Silva, 125 U. S. 247, 8 S. Ct. 881, 31 L. Ed. 678; Green v. Societe Anonyme, etc. (C. C.) 81 F. 64; W. H. Goff, Co. v. Lamborn & Co. (C. C. A.) 281 F. 613. It is also very different from the vague allegations chiefly legal conclusions, set out in Franklin Sugar Refining Co. v. Hanscom Brothers, 273 Pa. 98, 116 A. 140. In W. H. Goff Co. v. Lamborn & Co. (C. C. A.) 281 F. 613, relied on by plaintiffs’ counsel, the allegation of fraud held to be insufficient does not appear. The demurrer to the defense of fraudulent procurement of the contracts should have been overruled. The defense that in violation of the Sherman Act (Comp. St. §§ 8820-8823, 8827-8830) the plaintiff in association with others created a monopoly or trust" }, { "docid": "5677128", "title": "", "text": "59 L.Ed. 520, Ann.Cas.1916A, 118, where the refining company sued for the price of corn syrup sold and delivered to defendant and defendant claimed as a defense that the refining company was part of an illegal conspiracy under the anti-trust laws, the court held that such defense could not be asserted as there were no elements of illegality inherent in the contract itself. In A. B. Small Co. v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597, where the plaintiff sued for the purchase price of sugar and the defense was raised that the contract was illegal because plaintiff was part of an illegal conspiracy under the anti-trust laws, the' court rejected this defense, saying (267 U.S. page 252, 45 S.Ct. page 302, 69 L.Ed. 597): “* * * it was not shown that the contracts were in themselves invalid under the Anti-Trust Act, but only that they were collateral to a combination prohibited by it.” The court said further: “As has been pointed out in prior cases, there is nothing in the Anti-Trust Act which invalidates such a collateral contract or relieves the buyer from his obligation under it.” (Citing the Connolly, Continental Wall Paper, and Wilder cases, supra) “It is only where the invalidity is inherent in the contract that the act may be interposed as a defense. With that exception the remedies which the act provides for violations of it are exclusive.” In Bell v. Lamborn et al., 4 Cir., 2 F.2d 205, 207, the court said: “The defense that in violation of the Sherman Act * * * the plaintiff in association with others created a monopoly or trust in sugar is not available to the defendant to defeat the recovery of the purchase price of goods. The remedy provided by the Anti-Trust Act of 1890 is exclusive.” The court distinguishes the Continental Wall Paper case and holds “In the case before us the defendant was not a participant in the illegal combination and his purchases were not in furtherance of it.” In the Sinclair Refining Company case, supra, the facts are" }, { "docid": "23003544", "title": "", "text": "a motion for judgment on the pleadings under Rule 12(c). In re Crazy Eddie Sec. Litig., 747 F.Supp. 850, 854 (E.D.N.Y.1990); Zebrowski v. Denckla, 630 F.Supp. 1307, 1308 n. 1 (E.D.N.Y.1986); Jennings Oil Co. v. Mobil Oil Corp., 80 F.R.D. 124, 127 n. 4 (S.D.N.Y.1978); cf. Canadian St. Regis Band of Mohawk Indians v. New York, 640 F.Supp. 203, 205 n. 2 (N.D.N.Y.1986) (untimely Rule 12(b) motion to dismiss on defense of statute of limitations could be considered as motion for judgment on the pleadings under Rule 12(c)). Furthermore, all of our sister circuits that have recently confronted this question have arrived at the same conclusion. Forseth v. Village of Sussex, 199 F.3d 363, 368 n. 6 (7th Cir.2000); Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999) (per curiam ); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999); Turbe v. Gov’t of Virgin Islands, 938 F.2d 427, 428 (3rd Cir.1991); Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980) (per curiam). True, Rule 12(b) states that the defense of failure to state a claim “shall be made before pleading if a further pleading is permitted.” Fed.R.Civ.P. 12(b). Equally true, however, Rule 12(h)(2) states that “[a] defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted ... or by motion for judgment on the pleadings, or at the trial on the merits.” Fed.R.Civ.P. 12(h)(2). Thus, the defense of failure to state a claim is not waivable. 5A Wright & Miller, Federal Practice and Procedure, § 1361 (2d ed. 1990) (“[UJnder Rule 12(h) [the defense] of failure to state a claim upon which relief can be granted, Rule 12(b)(6), [is] preserved from the waiver mechanism in Rule 12(h).”). We now accept the overwhelming weight of authority that a motion to dismiss for failure to state a claim (or one of the other non-waivable defenses under Rule 12(h)) that is styled as arising under Rule 12(b) but is filed after the close of pleadings, should be construed" }, { "docid": "6226788", "title": "", "text": "thus shown to be very different from expressions of opinion as to future market prices or other matters depending on unknown contingencies as in Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166; Southern Development Co. v. Silva, 125 U. S. 247, 8 S. Ct. 881, 31 L. Ed. 678; Green v. Societe Anonyme, etc. (C. C.) 81 F. 64; W. H. Goff, Co. v. Lamborn & Co. (C. C. A.) 281 F. 613. It is also very different from the vague allegations chiefly legal conclusions, set out in Franklin Sugar Refining Co. v. Hanscom Brothers, 273 Pa. 98, 116 A. 140. In W. H. Goff Co. v. Lamborn & Co. (C. C. A.) 281 F. 613, relied on by plaintiffs’ counsel, the allegation of fraud held to be insufficient does not appear. The demurrer to the defense of fraudulent procurement of the contracts should have been overruled. The defense that in violation of the Sherman Act (Comp. St. §§ 8820-8823, 8827-8830) the plaintiff in association with others created a monopoly or trust in sugar is not available to the defendant to defeat the recovery of the purchase price of goods. The remedy provided by the Anti-Trust Act of 1890 is exclusive. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 46 L. Ed. 679; D. R. Wilder Mfg. Co. v. Corn Products Refining Co., 236 U. S. 165, 35 S. Ct. 398, 59 L. Ed. 520, Ann. Cas. 1916A, 118; Geddes et al. v. Anaconda Copper Mining Co., 254 U. S. 590, 41 S. Ct. 209, 65 L. Ed. 425. In Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U. S. 227, 260, 29 S. Ct. 280, 53 L. Ed. 486, it was held that the seller could not recover because both buyer and seller were parties to an illegal conspiracy to put all wall paper into a trust forbidden by law, and both made the contract of sale sued on in the execution and maintenance of the conspiracy. In such case the law will leave the parties where" }, { "docid": "23082701", "title": "", "text": "1970); Dulien Steel Products, Inc. v. Bankers Trust Co., 298 F.2d 836 (2d Cir. 1962); Uniform Commercial Code § 5-114(1); H. Harfield, supra at 31. For example, if for its own reasons Equibank had prepared a writing in proper form extending the time for an additional month without the consent of Air-North, Chase could have enforced the letter of credit during that period. The fact that Air-North could have refused to pay Equibank for money disbursed during the unauthorized exten sion would not have insulated the bank from recovery by Chase. In Barclays Bank D. C. O. v. Mercantile National Bank, supra, the issuer by its own conduct was held to have waived proper presentation of documents despite the clear language of the letter of credit and the absence of consent by the customer. In affirming a judgment in favor of the beneficiary, the Court of Appeals said: “There are no provisions in Article 5 [of the Uniform Commercial Code] which would indicate a belief on the part of the drafters that this doctrine of waiver should be inapplicable under the U.C.C.” 481 F.2d at 1237. We agree with that statement and apply it to the case at hand. See also Lamborn v. Cleveland Trust Co., 29 F.2d 46 (6th Cir. 1928). Thus, should the district court determine that Equibank authorized a delayed presentation of documents, the absence of assent by Air-North would not per se prevent recovery by Chase. Since the court’s determination hinged on the lack of consent by Air-North, the judgment in favor of Equibank must be vacated. Chase urges us to enter judgment in its favor arguing that since the affidavit of Lambert is uncontradicted, there is no material fact in dispute. We do not accept this contention, but rather agree with the district judge’s perceptive opinion of May 2, 1975 in which he characterized the matter as disputed and noted that Nieman denied any waiver of the letter’s terms. Moreover, in circumstances such as these, the trier of fact should have the opportunity to make judgments of credibility based upon all of the surrounding circumstances." } ]

[ { "docid": "7800884", "title": "", "text": "part: (a) Whoever, if the circumstance described in subsection (b) of this section exists — (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof — (A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that — (i) is valued at $5,000 or more, and (ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from ariy person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more; or (2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; shall be fined under this title, • imprisoned not more than 10 years, or both. (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance; (c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business. ' Grossi contends that the “circumstance described in subsection (b)” — that “the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program” — was not satisfied because the Township’s general assistance program is funded entirely by local sources. He also makes an" } ]

[ { "docid": "2305601", "title": "", "text": "contest their convictions under 18 U.S.C. § 666, which criminalizes the following acts: [C]orruptly givfing], offer[ing], or agree[ing] to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of a value of $5000 or more. 18 U.S.C. § 666(a)(2). The statute applies, however, only where: the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. 18 U.S.C. § 666(b). D. Paradies argues that the district court misconstrued § 666 not to require two essential elements: (1) that the corrupt payments be made in connection with the administration of programs receiving federal funds, and (2) that the payments be made as a “quid pro quo” for an official act. He argues that those errors led the district court impermissibly to deny his motions to dismiss, for judgment of acquittal, and for a new trial, and that they also caused the court to reject the proposed jury charges relating to those issues. Jackson relies only on the first argument, and not the “quid pro quo” argument, in support of his claim. The government, on the other hand, claims that “[t]he plain language of § 666 does not impose these limitations, nor has any court ever engrafted these limitations on the clear statutory text.” We will discuss each argument in turn. (1) Does § 666 Require that the Corrupt Payment Be Directly Connected to the Administration of Federal Funds ? The defendants argue that they cannot be convicted pursuant to § 666 because the corrupt payments that were the subject of those convictions were not shown to be connected to any federally funded program. They argue, relying on legislative history, that the purpose of the statute was to protect the integrity of monies distributed through federal programs. Because the" }, { "docid": "17103999", "title": "", "text": "theory of liability. Section 666(a)(1)(B) provides that an agent of an organization that receives benefits in excess of $10,000 under a federal program, in any one year period, is guilty of an offense if he “corruptly ... accepts, or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization.... ” 18 U.S.C. § 666(a)(1)(B). We have held that Section 666 extends to both bribes — where the thing of value is part of a quid pro quo, and gratuities — where the thing of value is a “reward” rather than a bargained-for exchange. For example, in United States v. Crozier, 987 F.2d 893 (2d Cir.1993), we held that a prior version of Section 666, which is identical in all material ways to the current version of the statute, applied to both illegal gratuities and bribes. Id. at 898-99. Although Congress amended Section 666 in 1986, those amendments had no effect on the statute’s applicability to illegal gratuities, and we have continued to hold that the current version applies to illegal gratuities as well as to bribes. See United States v. Bonito, 57 F.3d 167, 171 (2d Cir.1995). Indeed, in Bonito, the appellant argued that the amendments to Section 666 warranted reconsideration of the scope of the statute and its relationship to illegal gratuities. Id. We rejected that argument, noting that “the deleted language ha[d] been replaced with language that is to the same effect.” Id. Specifically, we noted that under the former version of Section 666, the payment had to be “for or because of’ official conduct, whereas the current version provides that the payment must be “to influence or reward” the official conduct. Id. (citations and internal quotation marks omitted). Later, in United States v. Ford, 435 F.3d 204, 211 (2d Cir.2006), we reiterated our earlier holding that Section 666 applies to both bribes and gratuities, noting that the statute it was designed to supplement, 18 U.S.C. § 201, criminalizes both. 435 F.3d at 210-11. In Ford, we observed, among other" }, { "docid": "22161012", "title": "", "text": "is not required for a § 666 conviction. Because US Infrastructure was only plain error review, we now make the same holding but under de novo review. We begin with the statutory language itself. Importantly, § 666(a)(1)(B) and (a)(2) do not contain the Latin phrase quid pro quo. Nor do those sections contain language such as “in exchange for an official act” or “in return for an official act.” In short, nothing in the plain language of § 666(a)(1)(B) nor § 666(a)(2) requires that a specific payment be solicited, received, or given in exchange for a specif ic official act. To accept the defendants’ argument would permit a person to pay a significant sum to a County employee intending the payment to produce a future, as yet unidentified favor without violating § 666. The requirement of a “corrupt” intent in § 666 does narrow the conduct that violates § 666 but does not impose a specific quid pro quo requirement. In all the trials consolidated in this appeal, the district court’s jury charge, with slight variations, defined “corruptly” as follows: “An act is done ‘corruptly’ if it is performed voluntarily, deliberately and dishonestly for the purpose of either accomplishing an unlawful end or result or of accomplishing some otherwise lawful end or lawful result by an[y] unlawful method or means.” It is acting “corruptly” — dishonestly seeking an illegal goal or a legal goal illegally — that separates permissible from criminal. The addition of a corrupt mens rea avoids prosecution for acceptable business practices. For all of these reasons, we now expressly hold there is no requirement in § 666(a)(1)(B) or (a)(2) that the government allege or prove an intent that a specific payment was solicited, received, or given in exchange for a specific official act, termed a quid pro quo. As to the defendant County employees, the government must show only what § 666(a)(1)(B) says: that a County employee “corruptly” accepted “anything of value” with the intent “to be influenced or rewarded in connection with any business, transaction, or series of transactions” of the County. And as to the" }, { "docid": "22161013", "title": "", "text": "variations, defined “corruptly” as follows: “An act is done ‘corruptly’ if it is performed voluntarily, deliberately and dishonestly for the purpose of either accomplishing an unlawful end or result or of accomplishing some otherwise lawful end or lawful result by an[y] unlawful method or means.” It is acting “corruptly” — dishonestly seeking an illegal goal or a legal goal illegally — that separates permissible from criminal. The addition of a corrupt mens rea avoids prosecution for acceptable business practices. For all of these reasons, we now expressly hold there is no requirement in § 666(a)(1)(B) or (a)(2) that the government allege or prove an intent that a specific payment was solicited, received, or given in exchange for a specific official act, termed a quid pro quo. As to the defendant County employees, the government must show only what § 666(a)(1)(B) says: that a County employee “corruptly” accepted “anything of value” with the intent “to be influenced or rewarded in connection with any business, transaction, or series of transactions” of the County. And as to the contractor-defendants, the government must show only what § 666(a)(2) says: that the defendant “corruptly” gave “anything of value” to a County employee with the intent “to influence or reward” that person “in connection with any business, transaction, or series of transactions” of the County. To be sure, many § 666 bribery cases will involve an identifiable and particularized official act, but that is not required to convict. Simply put, the government is not required to tie or directly link a benefit or payment to a specific official act by that County employee. The intent that must be proven is an intent to corruptly influence or to be influenced “in connection with any business” or “transaction,” not an intent to engage in any specific quid pro quo} C. Other Circuits In concluding § 666 does not require a specific quid pro quo, we align ourselves with the Sixth and Seventh Circuits. See United States v. Abbey, 560 F.3d 513, 520 (6th Cir.), cert. denied, — U.S.-, 130 S.Ct. 739, — L.Ed.2d-(2009) (stating “the text says nothing" }, { "docid": "7868898", "title": "", "text": "Sabri, 541 U.S. at 606-07, 124 S.Ct. 1941. That legitimate purpose and Congress’s rational means of achieving it by eschewing a nexus requirement in the offense would be undermined if defendants such as Hines could require the government to establish such a nexus. See Gonzales v. Raich, 545 U.S. 1, 3, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (stating, in the context of legislation enacted pursuant to the Commerce Clause, that “where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class” (internal quotation and alteration omitted)). Thus, we reiterate our position on this issue and also point to those post-Sabri decisions that have declined to require any connection between federal funds and the activity that constitutes a violation of § 666. See, e.g., United States v. Caro-Muniz, 406 F.3d 22 (1st Cir.2005); United States v. Kranovich, 401 F.3d 1107 (9th Cir.2005); United States v. Spano, 401 F.3d 837 (7th Cir.2005); United States v. Mirikitani, 380 F.3d 1223 (9th Cir.2004). B. Hines also argues that the evidence is insufficient to show that the minimum jurisdictional amount required by § 666 was met for each count of his conviction. The relevant language of that statute provides that an agent of a state or local government violates the statute if he corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5, 000 or more.... § 666(a)(1)(B) (emphasis added). Hines argues that the “thing of value” must be worth $5,000 or more to either the briber or the bribee, and thus the money judgments and foreclosed property values should not be considered in calculating that value. Our decision in United States v. Zimmermann, 509 F.3d 920, 926 (8th Cir.2007), forecloses that con tention. The plain language of the statute does not require" }, { "docid": "13493651", "title": "", "text": "an official act. Robles argues that there was insufficient evidence to convict him of bribery under § 666 because there is no evidence that he intended to be, or even could have been, influenced in his performance of one of his official duties. Robles claims that, as Treasurer of South Gate, he did not have the authority to approve the waste-hauling contract; rather that authority was vested in the city council. Moreover, as Treasurer, he was required to disburse monies properly approved by the city. “ ‘Claims of insufficient evidence are reviewed de novo.’ ” United States v. Sullivan, 522 F.3d 967, 974 (9th Cir.2008) (quoting United States v. Ship-sey, 363 F.3d 962, 971 n. 8 (9th Cir.2004)). There is sufficient evidence if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Section 666 concerns bribery in connection with state and local entities receiving federal funds. An official violates § 666 if the official “corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions” of an entity (in this case, the City of South Gate), if the exchange involves at least $5,000 and the entity receives federal funds in excess of $10,000. 18 U.S.C. § 666(a)(1)(B), (b). The purpose of the statute is to “protect federal funds by preserving the integrity of the entities that receive the federal funds.” United States v. Simas, 937 F.2d 459, 463 (9th Cir.1991) (citing United States v. West-moreland, 841 F.2d 572, 578 (5th Cir.1988)). Robles’s argument that § 666 requires an official act “confuses influence with [the] power to act unilaterally.” United States v. Gee, 432 F.3d 713, 715 (7th Cir.2005). A jury could reasonably find that Robles intended to be influenced in connection with the city’s award of the waste-hauling" }, { "docid": "22161026", "title": "", "text": "court rejected the proposed quid pro quo instructions, gave the Eleventh Circuit’s pattern jury instructions for § 666 as to corruptly giving bribes, telling the jury: As I’ve said, the defendants, other than Jewell C. “Chris” McNair, are charged in various counts of violating a portion of Title 18, Section 666, which makes it a federal crime or offense for anyone to corruptly give, offer or agree to give anything of value to anyone who is an agent of a local government receiving significant benefits under a federal assistance program intending to reward or influence that agent in connection with any business, transaction, or series of transactions of such local government involving anything of value of $5,000 or more. Fifth: And this is another thing that the government would have to prove beyond a reasonable doubt. That each such gift, offer or agreement to give, that by each of those gifts, offer or agreement to give, the Defendant [ ] corruptly intended to reward or influence Jewell C. “Chris” McNair in connection with a transaction, or series of transactions, with Jefferson County, Alabama, which transaction or series of transactions involved something of value of $5,000 or more. Sixth: That in doing so, the Defendant [ ] acted corruptly. An act is done “corruptly” if it is performed voluntarily, deliberately, and dishonestly, for the purpose of either accomplishing an unlawful end or result or ■ of accomplishing some otherwise lawful end or lawful result by an unlawful method or means. The district court also gave the pattern § 666 jury charge, with slight variations, as to corruptly receiving bribes. The judges in the subsequent trials (Swann, Barber, and Wilson ) agreed with the district court’s ruling in the McNair trial and gave jury instructions that did not include defendant-appellants’ requested quid pro quo instructions. Given our conclusion that § 666(a)(1)(B) and (2) do not require proof of a specific quid pro quo, defendant-appellants’ proposed jury instructions containing that requirement were incorrect statements of law. Thus, the district courts did not abuse their discretion in refusing them. See US Infrastructure, 576 F.3d" }, { "docid": "8092609", "title": "", "text": "force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). “To prove extortion by fear of economic harm, the government must establish that the threat of such harm generated fear in the victim. The victim’s state of mind is relevant, and the government may show not only what a defendant said but also what a victim believed about the situation.” United States v. Hairston, 46 F.3d 361, 365 (4th Cir. 1995). In this case, the government charged extortion under color of official right as an alternative to extortion by fear of economic harm. “To prove this offense, the Government ‘need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.’” Ocasio v. United States, — U.S. —, 136 S.Ct. 1423, 1428, 194 L.Ed.2d 520 (2016) (quoting Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992)). The Fourth Circuit has held that “the government must prove a quid pro quo when it charges extortion under color of official right.” Hairston, 46 F.3d at 365. The program bribery statute that Pom-renke was convicted of violating states, in relevant part: Whoever ... being an agent of ... a State [or] local ... government, or any agency thereof— (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such ... government, or agency involving any thing of value of $5,000 or more; shall be fined under this title, imprisoned not more than 10 years, or both. 18 U.S.C. § 666(a). The relevant intent under this subsection is Pomrenke’s, not the vendor’s. The question is whether Pomrenke “corruptly solicited] or demanded]” things “intending to be influenced or rewarded.” Id. Honest services wire fraud is a crime housed in the wire fraud statute. The wire fraud statute states: Whoever, having devised or intending to devise any scheme or artifice" }, { "docid": "22161014", "title": "", "text": "contractor-defendants, the government must show only what § 666(a)(2) says: that the defendant “corruptly” gave “anything of value” to a County employee with the intent “to influence or reward” that person “in connection with any business, transaction, or series of transactions” of the County. To be sure, many § 666 bribery cases will involve an identifiable and particularized official act, but that is not required to convict. Simply put, the government is not required to tie or directly link a benefit or payment to a specific official act by that County employee. The intent that must be proven is an intent to corruptly influence or to be influenced “in connection with any business” or “transaction,” not an intent to engage in any specific quid pro quo} C. Other Circuits In concluding § 666 does not require a specific quid pro quo, we align ourselves with the Sixth and Seventh Circuits. See United States v. Abbey, 560 F.3d 513, 520 (6th Cir.), cert. denied, — U.S.-, 130 S.Ct. 739, — L.Ed.2d-(2009) (stating “the text says nothing of a quid pro quo requirement to sustain a conviction” and “while a quid pro quo of money for a specific legislative act is sufficient to violate [§ 666(a)(1)(B) or (a)(2)], it is not necessary”) (quotation marks omitted); United States v. Gee, 432 F.3d 713, 714-15 (7th Cir.2005) (holding that “[a] quid pro quo of money for a specific legislative act” is not necessary under § 666(a)(1)(B) and that an exchange of money for the official’s “influence” was enough); United States v. Agostino, 132 F.3d 1183, 1190 (7th Cir.1997) (“We decline to import an additional, specific quid pro quo requirement into the elements of § 666(a)(2).”); but see United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir.1998) (concluding the “corrupt intent” element in § 666 requires the government to prove a quid pro quo, but stating the “quid pro quo requirement is satisfied so long as the evidence shows a ‘course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor’" }, { "docid": "22161015", "title": "", "text": "of a quid pro quo requirement to sustain a conviction” and “while a quid pro quo of money for a specific legislative act is sufficient to violate [§ 666(a)(1)(B) or (a)(2)], it is not necessary”) (quotation marks omitted); United States v. Gee, 432 F.3d 713, 714-15 (7th Cir.2005) (holding that “[a] quid pro quo of money for a specific legislative act” is not necessary under § 666(a)(1)(B) and that an exchange of money for the official’s “influence” was enough); United States v. Agostino, 132 F.3d 1183, 1190 (7th Cir.1997) (“We decline to import an additional, specific quid pro quo requirement into the elements of § 666(a)(2).”); but see United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir.1998) (concluding the “corrupt intent” element in § 666 requires the government to prove a quid pro quo, but stating the “quid pro quo requirement is satisfied so long as the evidence shows a ‘course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor’ ” and “the intended exchange in bribery can be ‘this for these’ or ‘these for these,’ not just ‘this for that’ ” (citations omitted)). The Second Circuit’s decision in United States v. Ganim, 510 F.3d 134 (2d Cir. 2007), also supports our analysis to some extent. The defendant “Ganim’s challenges to the jury charge primarily relate[d] to a single issue: namely, whether proof of a government official’s promise to perform a future, but unspecified, official act is sufficient to demonstrate the requisite quid pro quo for a conviction” under § 666(a)(1)(B). Id. at 141-42. Although accepting a quid pro quo requirement for a bribery conviction, the Second Circuit rejected Ganim’s claim that “a direct link must exist between a benefit received and a specifically identified official act.” Id. at 142. The Second Circuit held “that the requisite quid pro quo for the crimes at issue [which included § 666(a)(1)(B)] may be satisfied upon a showing that a government official received a benefit in exchange for his promise to perform official acts or to perform such" }, { "docid": "23336992", "title": "", "text": "contained in the indictment. IV. Bribery Convictions Appellants contend that their bribery convictions must be reversed. Appellants assert that since the government charged them under 18 U.S.C. § 666(a)(2), the government was required to show that they intended to enter into a direct exchange with an agent of the organization receiving federal funds. Appellants argue that the government produced no evidence showing that they intended to influence or reward anyone in the Dade County Finance Department. Moreover, appellants challenge the sufficiency of the evidence presented at trial to establish that Metropolitan Dade County received federal grants in excess of $10,000. At trial, the appropriate inquiry was: did the government prove beyond a reasonable doubt that the appellants (1) gave or offered to give a thing of value to any person (2) with the corrupt intent to influence or reward an agent of an organization that in a one-year period received benefits in excess of $10,000 under a federal program (3) in connection with any business transaction or series of transactions of such organization, government, or agency involving anything of the value of $5,000 or more. 18 U.S.C.A. § 666(a)(2) (West 1976 & Supp.1995). The government presented evidence at trial establishing that the appellants (1) paid kickbacks to Judge Gelber (2) with the intent to have Judge Gelber appoint them as SAPDs and authorize an agent of the Dade County Finance Department to issue them compensation checks (3) in connection with their rendering of legal services of a value exceeding $5,000. We reject appellants’ suggestion that the government had to show a direct quid pro quo relationship between them and an agent of the agency receiving federal funds. We believe that the appellants’ narrow reading of the bribery statute would belie the statute’s purpose “to protect the integrity of the vast sums of money distributed through federal programs from theft, fraud, and undue influence by bribery.” S.Rep. No. 225, 98th Cong., 2d Sess. 369-370 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510-11. It is clear from the record that the appellants knew that payments for SAPD services came from Metropolitan Dade County" }, { "docid": "22161006", "title": "", "text": "counts against him in the Barber trial. PUGH appeals all conviction counts. VI. QUID PRO QUO ISSUES All defendant-appellants argue that their bribery convictions under 18 U.S.C. § 666 must be vacated because the Indictment failed to allege, and the government failed to prove, the contractor-defendants gave specific benefits to County employees in exchange for, and with the intent that, the employees perform a specific official act, termed a quid pro quo. The defendant-appellants also argue the district court erred, at a minimum, by refusing to charge the jury that the government must prove a specific quid pro quo. We begin by reviewing the relevant parts of § 666. A. 18 U.S.C. § 666 Section 666 proscribes theft and bribery in connection with programs of local governments receiving federal funds. Section 666(a)(1)(B) criminalizes a local government employee’s “corruptly” soliciting or accepting a bribe: (a) Whoever ... (1) being an agent[ ] of [a] local ... government, or any agency thereof— (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such ... government, or agency involving anything'of value of $5,000 or more; or shall be fined ..., imprisoned not more than 10 years, or both. 18 U.S.C. § 666(a)(1)(B). Defendants McNair, Swann, Wilson, and Barber, as Jefferson County employees, violated § 666(a)(1)(B) if: (1) they solicited or accepted anything of value; (2) with the corrupt intent to be influenced or rewarded; (3) in connection with any business, transaction, or series of transactions of Jefferson County involving anything of value of $5,000 or more. Id. The counts in the Indictment as to McNair and Swann track the language of the statute. Section 666(a)(2) also criminalizes “corruptly” offering or giving a bribe to a local government employee: (a) Whoever ... (2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of [a] ... local ... government, or any agency thereof," }, { "docid": "10823803", "title": "", "text": "considered that Zwick raised factual issues at trial, rather than limiting himself to legal arguments. The District Court sentenced Zwick to concurrent terms of thirty-three months as to each count, to be followed by five years of supervised release. Zwick filed the instant appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. II. Zwick contends that the evidence as to all three counts of his § 666 conviction is insufficient because the government failed to prove the existence of any connection between his conduct and federal funds or programming. Specifically, he argues that § 666 requires such a connection, or, alternatively, that the statute is unconstitutional as applied to him. We exercise plenary review over questions of statutory interpretation. See United States v. Hayden, 64 F.3d 126, 128 (3d Cir.1995). The federal bribery statute at issue, 18 U.S.C. § 666, provides in pertinent part: § 666. Theft or bribery concerning programs receiving Federal funds (a) Whoever, if the circumstance described in subsection (b) of this section exists— (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof— (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; shall be fined under this title, imprisoned not more than 10 years, or both, (b) The circumstance referred to in subsection (a) of this section is that the organization; government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. Prior to the enactment of § 666 in 1984, the limited scope of the federal bribery statute and general theft of property statute hampered the federal government’s efforts to reach crimes affecting federal interests due to tracing requirements and limitations on application to non-federal employees. See 18 U.S.C." }, { "docid": "13166470", "title": "", "text": "an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; shall be fined under this title, imprisoned not more than 10 years, or both. (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency re ceives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. Robinson challenges his conviction on two grounds. First, he claims that the evidence was insufficient evidence to establish the “federal funds” element under subsection (b), which requires the government to prove that the “organization, government, or agency” whose agent was bribed received federal assistance in excess of $10,000 during the year in which the bribe was offered. Second, he challenges the sufficiency of the evidence on the “transactional element” in subsection (a)(2) — the statutory requirement that the bribe must be made with intent to influence the agent “in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.” In a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and reverse only if no rational juror could have found the elements of the offense beyond a reasonable doubt. United, States v. Smith, 576 F.3d 681, 686 (7th Cir.2009). 1. Federal-Funds Element Congress enacted § 666 under its Spending Power, U.S. Const, art. I, § 8, cl. 1, and the Necessary and Proper Clause, id. art. I, § 8, cl. 18; the federal-funds element supplies the federal interest necessary to support congressional authority to enact the statute. See Sabri v. United States, 541 U.S. 600, 605, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). This element requires the government to prove that the bribe was solicited or offered with intent to influence an agent" }, { "docid": "17103998", "title": "", "text": "an official act.’ ” Id. (emphasis added). In this vein, we find the “in return for” language in the district court’s instruction rests comfortably within the statutory requirement. B. The Section 666 Jury Charge With respect to Bahel’s arguments regarding the failure of the indictment to charge bribery under Section 666, and the district court’s omission of a “corrupt intent” instruction thereunder, we find both arguments to be without merit. The crux of Bahel’s argument is that the jury charge was flawed because without express mention of “corrupt intent,” the Section 666 charge instructed the jury only on an illegal gratuity theory, and Section 666, Bahel contends, is limited to garden variety bribery. As set forth in full detail below, we find that the district court adequately charged the jury on the elements of a violation of Section 666, and that to the extent the verdict sheet indicated that Bahel had been convicted on a gratuities theory (i.e., “intent to be rewarded” for official acts), Section 666 is broad enough to encompass an illegal gratuity theory of liability. Section 666(a)(1)(B) provides that an agent of an organization that receives benefits in excess of $10,000 under a federal program, in any one year period, is guilty of an offense if he “corruptly ... accepts, or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization.... ” 18 U.S.C. § 666(a)(1)(B). We have held that Section 666 extends to both bribes — where the thing of value is part of a quid pro quo, and gratuities — where the thing of value is a “reward” rather than a bargained-for exchange. For example, in United States v. Crozier, 987 F.2d 893 (2d Cir.1993), we held that a prior version of Section 666, which is identical in all material ways to the current version of the statute, applied to both illegal gratuities and bribes. Id. at 898-99. Although Congress amended Section 666 in 1986, those amendments had no effect on the statute’s applicability to illegal gratuities," }, { "docid": "13493658", "title": "", "text": "to Harris, to influence the sewer contract” (citation omitted)); McNair, 605 F.3d at 1191 (explaining § 666 “requires only that money be given with intent to influence or reward a government agent ‘in connection with any business, transaction, or series of transactions,’” and “does not say ‘official act’”); Abbey, 560 F.3d at 515, 519-21 (affirming § 666 conviction where the government asserted that “Abbey used his influence and position to assist Rizzo with several land developments” but “did not introduce any evidence establishing that ... Rizzo and Abbey had an express agreement for a specific official act to be done in return for Rizzo’s gift”); Gee, 432 F.3d at 715 (affirming § 666 conviction where a jury could find that “money ... was exchanged for George’s influence” in directing contracts towards the organization, because even though George did not have the power to award the contracts “George had plenty of clout and used it to [the organization’s] benefit”). Although Second Circuit cases refer to bribery in connection with an official act, the Second Circuit has not squarely held that official acts or duties are required for a § 666 conviction. In United States v. Ford, the court stated that the defendant “accepted [free media] services ‘intending to be influenced’ in her official duties.” 435 F.3d 204, 212 (2nd Cir.2006) (emphasis added). The primary focus of Ford, however, was addressing whether the jury was properly instructed that the “recipient [of the bribe] must have accepted the thing of value while, ‘intending to be influenced.’ ” Id. at 212-14. Although Ford suggests that the word “corruptly” in § 666 implies a breach of some official duty, id. at 211, the Eleventh Circuit has interpreted the word “corruptly” to mean “dishonestly seeking an illegal goal or a legal goal illegally.” McNair, 605 F.3d at 1188. We agree with the Eleventh Circuit that “[t]he requirement of a ‘corrupt’ intent in § 666 ... narrow[s] the conduct that violates § 666 but does not impose a specific quid pro quo requirement.” Id. at 1188. In United States v. Bonito, the Second Circuit upheld a jury" }, { "docid": "13493669", "title": "", "text": "substantive count of bribery under another statute, 18 U.S.C. § 201, \"confirms beyond any reasonable doubt that the jury would have convicted’’ Wilkes under § 1346 honest services fraud on a bribery theory because § 201, like § 1346 bribery, requires proof of a quid pro quo). . The Indictment charged Robles with \"corruptly accepting] and agreeing] to accept ... payments for goods and services and campaign contributions from Michael Klistoff and All City Services, intending to be influenced and rewarded in connection with a transaction of [a local government] ... namely, the awarding of a multiple-year refuse collection and recycling contract in South Gate worth approximately $48 million.\" . The South Gate Municipal Code provides that “[t]he primary function of the city treasurer is to disburse monies on demand which have been properly audited and approved, such that once the proper procedures have been followed, the duty of the city treasurer to disburse the funds is mandatory and not discretionary.\" South Gate Municipal Code § 1.05.050(A) (emphasis added). The treasurer is also responsible for receiving cash receipts and depositing , them into the appropriate city account. Id. at § 1.05.050(B). This duty is not a \"policy decision,” but is instead \"administrative and ministerial.” Id. . Robles cites to several cases from the Second Circuit in support of his argument that § 666 requires a quid pro quo, an exchange for a specific official act. Most of our sister circuits, however, have rejected the argument that § 666 requires a quid pro quo. See McNair, 605 F.3d at 1187-88; Abbey, 560 F.3d at 520-21; Gee, 432 F.3d at 714-15; see also United States v. Boender, 649 F.3d 650, 654 (7th Cir.2011) (noting that the Seventh Circuit \"like most others, does not require a specific quid pro quo \" under § 666); supra n. 9. Moreover, it is possible for a court to require a quid pro quo but not require that the exchange be for a specific official act. See United States v. Redzic, 627 F.3d 683, 692 (8th Cir.2010) (stating \"the government must present evidence of a quid pro" }, { "docid": "9466490", "title": "", "text": "that he and Linda Grubb were divorced from June 1986 until April of 1991 so that Grubb's problems with the Internal Revenue Service would not affect her wages. However, they continued to live together and hold themselves out to the public as married during that period of divorce. . 18 U.S.C. § 666(a)(2) penalizes any person who: corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; . 18 U.S.C. § 666(b) requires, as a predicate for jurisdiction, that the governmental unit involved \"receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contact, subsidy, loan, guarantee, insurance, or other form of Federal assistance.” 18 U.S.C. § 666(d)(4) defines \"in any one year period\" as \"a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense.” In short, the proof must be of any one year period that includes the date of the crime. . The Cicco court acknowledged that “a solicitation of specific election day services with municipal employment as the quid pro quo, might come within the literal language of § 666.” The court reasoned that, since the charged conduct was illegal for federally funded jobs under 18 U.S.C. § 601 (covering deprivation of employment to enforce political contributions), and Congress did not mention § 601 when enacting § 666, then Congress did not intend § 666 to cover conduct that § 601 covers. Cicco, 938 F.2d at 444. . 18 U.S.C. § 1341 provides in relevant part: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or" }, { "docid": "8144697", "title": "", "text": "own financial interests while purporting to act on behalf of the public. Skilling, 130 S.Ct. at 2932 (citation omitted). As noted, see supra note 8, the District Court in our case struck the charges that relied on a conflict-of-interest theory before trial began. . The Government argues that § 666 does not require proof of a quid pro quo in any event. Because we believe that the instruction did require the jury to find an exchange, we need not decide that question today. . Bribery occurs when a public official “corruptly solicits or demands ..., or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency....” 18U.S.C. § 666(a)(1)(B) (emphasis added). .The instruction provided: In order to find that a defendant engaged in quid pro quo bribery, you must find that the government proved [that Gallagher] intended to give the stream of payments in the form of salary and other financial benefits in exchange for one or more official acts [and that] Bryant ... intended to perform one or more official acts in exchange for his salary and other financial benefits from [SOM], (Emphases added.) . For that reason, we also reject Appellants' speculation that the jurors turned to the indictment, which lacked language of \"exchange” in the § 666 charges, for clarification, as the Court instructed that they were only permitted to apply the law provided to them by the Court and that the indictment was an accusation and nothing more. . In its ruling on Appellants' Rule 29 motion, the District Court noted “whether Bryant’s employment at SOM was unlawful does not necessarily satisfy the present inquiry [of whether the evidence is sufficient to support the pension fraud counts]. Whether or not the Division would have ultimately denied Bryant his pension if it knew the facts alleged in the Indictment is beside the point if Bryant took actions to make sure the Division would not know those facts.” Bryant, 2009 WL 1559796, *14 (quoting United" }, { "docid": "8144696", "title": "", "text": "sufficient with respect to the quid pro quo alleged in the honest services fraud counts, we also conclude it was sufficient to support the bribery counts, as the bribery counts were based on the bribery alleged in the honest services fraud counts. . McNally had struck down the notion of honest services fraud by limiting mail fraud to schemes involving tangible property rights, which, in turn, prompted Congress to enact 18 U.S.C. § 1346, overruling McNally. . In Kemp we stated that a gratuity \"may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.” 500 F.3d at 281 (quoting Sun-Diamond., 526 U.S. at 405, 119 S.Ct. 1402). . Appellants concede in their Reply Brief, and we agree, that there is no meaningful difference between an intent to “alter,” and an intent to \"influence,” official acts. . The conflict-of-interest theory of honest services fraud criminalized undisclosed self-dealing by public officials whose actions furthered their own financial interests while purporting to act on behalf of the public. Skilling, 130 S.Ct. at 2932 (citation omitted). As noted, see supra note 8, the District Court in our case struck the charges that relied on a conflict-of-interest theory before trial began. . The Government argues that § 666 does not require proof of a quid pro quo in any event. Because we believe that the instruction did require the jury to find an exchange, we need not decide that question today. . Bribery occurs when a public official “corruptly solicits or demands ..., or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency....” 18U.S.C. § 666(a)(1)(B) (emphasis added). .The instruction provided: In order to find that a defendant engaged in quid pro quo bribery, you must find that the government proved [that Gallagher] intended to give the stream of payments in the form of salary and other financial benefits" } ]

[ { "docid": "8969760", "title": "", "text": "own experience as practical mechanics, nor from their own ingenuity, any conception of the necessary means. In the prior art were combinations of indicator-drums and weighing mechanisms. But the cause of their failure might lie á-t any one of many points. It remained for Smith to discover that the most essential thing in reorganizing the old elements was to make the drum so light that its interference with the weighing operation would be eliminated. And he embodied that conception or “happy thought” in the new means described in the patent and covered by the claims of the first patent in suit. The evidence in this record (and we have considered, though we have not thought it necessary to discuss, the remoter references to the nonautomatic art), instead of overcoming, has strongly fortified the presumption of invention. Defendant insists, however, that making the drum lighter was merely a matter of degree. Of course the lessening of weight is a matter of degree; but it is not necessarily merely a matter of degree. If the change converts failure into success, something more than a matter of degree is involved. Unreliable automatic computing scales, in the practical art, are no scales at all. A reliable automatic scale was a new mechanism, a creation, just as in the aspirin case (Kuehm sted v. Farbenfabriken of Elberfeld Co., 179 Fed. 701, 103 C. C. A. 243) this court held that the reduction of the amount of impurities in a compound theretofore known to chemists, whereby a deleterious substance was converted into a valuable medicine, was not merely a change of degree, but was a change of kind, producing a new article of commerce. A further insistence is made that the patent is void for in-, definiteness, in this, that the degree of thinness of the aluminum frame and of the paper cylinder are not specified. In the quoted part of the specification Smith substantially told those skilled in the art to make the skeleton frame to the last degree of thinness that would support the cylinder, and to make the cylinder of the very thinnest" } ]

[ { "docid": "16056959", "title": "", "text": "latter being similar in outline to the corrugated capillary tube disclosed by Sehlaich. But it must be borne in mind that the purpose which Bourdon had in mind, and which he accomplished, was quite different from that conceived by Sehlaich. Bourdon’s purpose was not to secure the smallest bore possible of capillary tubing, and he did not distort his tube with this end in view. He changed the cylindrical cross-sectional area of the tube, and bent it, not for the purpose of reducing the size, but in order to produce a spring which would respond by change of form to the pressure of the fluid contained therein. Sehlaich, on the other hand, proposed to make a tubing smaller than any which had been made before, and it was essential for his purpose that the tubing should not respond by change of form to internal pressure. The requirements of installation in aeroplanes involve the bending or coiling of tubing. If it responds by change of form to internal pressure, the registering device' is thereby affected, and errors in the measure ment of the temperature result. The evidence shows that the bore of the Schlaich tube is so small that it does not have this effect. Consequently, notwithstanding certain pictorial resemblance, the difference between the two is so marked that the Schlaich tubing will not perform the Bourdon result. Moreover, as will hereafter appear, the Bourdon tube is not of capillary dimension. The Patent Office .was particularly influenced by the Hodgkinson patent and certain statements contained therein, which the record now shows for the first time to be incorrect. The case now before the court is therefore not the same as that presented to the Patent Office and the Court of Appeals. The inventor Hodgkinson was produced as a witness, and made it clear that certain averments in the specification of his patent, which were quoted and mainly relied upon in the Patent Office, were not in accordance with the facts. As already pointed out, Hodgkinson described the use of a capillary tube connecting the recording mechanism with the distant receptacle or" }, { "docid": "16056965", "title": "", "text": "change its form in response to changes in internal pressure, and is therefore necessarily of much greater than capillary dimensions. These amendments are in line with other well-recognized definitions of the term “capillary,” as hairlike, such as that contained in the Century Dictionary. It seems to be clear that the invention has been so limited to tubing of the finest bore by these amendments that the monopoly of the patent will not be extended to other structures outside its proper scope, such, for instance, as the corrugated or deformed boiler tubes disclosed by the Serpollet patent of 1895 and other structures of the prior art. The Patent Office also contends that the question is not whether the tubing is smaller than previous tubing, but whether the corrugated tubes of Bourdon, especially those which were star-shaped, or T-shaped, in cross-section, would suggest to one shilled in the art the corrugated smaller tubing. It is said that the new tubing differs from the old merely in size, and is therefore not patentable. But the case does not fall within the general rule illustrated by the line of cases which hold that there is no invention involved in converting a large machine into a small one, or the reverse. That which is involved in the patents in suit is not merely a reduction in size. The new tubing is effective only by reason of its size. The reduction in the cross-sectional area of the tubing converted failure into success, and involved something more than a matter of degree. A result of this kind may constitute invention. Toledo Computing Scale Co. v. Computing Scale Co. (C. C. A.) 208 F. 410; Edison Electric Light Co. v. United States Electric Light Co. (C. C. A.) 52 F. 300. The real question is whether Sehlaieh’s discovery should have been obvious to persons skilled in the art. It is of assistance •in deciding this question to realize that the demand for very small capillary tubing had existed for a considerable period, and efforts had been made to produce it. The testimony before the court in the case" }, { "docid": "16056954", "title": "", "text": "of the inventor in the art, and the manner in which the invention was made, throw considerable light upon the question of patentability. Schlaich was an experienced man in the instrument art, having had some 20 years? experience in the manufacture of heat indicators. For 8 years he was connected with the Schaeffer-Badenberg Company, the oldest manufacturers of such instruments in the world, and for 12 years with the Motometer Company. He was associated with the last-mentioned company in 1917, when this country entered the Great War. His employer was requested by the Army and Navy to develop a heat indicator for aeroplanes which required a much longer tube and much closer calibration than had been necessary in the manufacture of heat indicators for automobiles upon which, up until that time, the Motometer Company had been engaged. To fill this order Sehlaieh first made an instrument equipped with plain capillary tubing of the bore of fifteen-thousandths of an inch, containing a wire ten-thousandths of an inch in diameter. In other words, he used the Hodgkinson system. The instrument, however, was rejected by the Bureau of Standards, because the tube area and the inaccuracy of registration were too great. The device was also objectionable because of the difficulty of manufacture. It was not possible to' secure-quantity production by introducing a wire. The next experiment of Sehlaich was to flatten out or crush the tube between two rolls. This attempt failed, because the tubing closed up entirely at certain points\" whenever an attempt was made to roll it flat enough to reduce the bore to the small dimension required. Furthermore, coiling of the wire for installation in an aeroplane affected the reading of the instrument, since it acted to some extent like the Bourdon tube hereinafter described. The result of this experiment was so unsatisfactory that no sample was submitted to the government. The final and successful step, which constituted the invention in suit, was to roll the tubing in a star shape; that is Jo say, to bring the sides together. By this means, the tube was corrugated or deformed, and" }, { "docid": "9629760", "title": "", "text": "to all of the other factors involved in the application of it. In explaining this he said that the diameter must be large enough so that it would not get choked by foreign material, or require an unnecessarily long tube, and that it must be correlated with the amount of refrigerant desired, the high-side volume and the low-side volume of the system and the capacity of the compressor. When pressed by the court to state whether these problems could be solved mathematically, appellants’ expert stated that it was largely a question of experimenting. It is evident, therefore, that the patent does not inform persons skilled in the art as to the precise dimensions or the mathematical rules which must be applied in order to secure the results described. But this is fatal to the validity of the patent. Timken Detroit Axle Co. v. Cleveland Steel Products Corporation, 6 Cir., 148 F.2d 267. In addition, the patent lacks patentable novelty. The subject matter fails to display “more ingenuity * * * than the work of a mechanic skilled in the art.” Sinclair & Carroll Co., Inc., v. Interchemical Corp., 65 S.Ct. 1143, 1145. Every element of the structure is old. The capillary tube is old, and its properties as a conveyor of fluids have been known since 1842. The gist of the claimed invention resides in inserting the capillary between the condenser and the evaporator, to restrict and regulate the flow of the refrigerant. The basic idea of restricting the flow from condenser to evaporator is old in the art. It was disclosed in Matthews’ “Elementary Mechanical Refrigeration,” published in 1912. Matthews, in illustrating the compression system of refrigeration, describes a figure comprising a condensing coil and a heating or expansion coil with the passage between the two “contracted to a sufficiently small cross section to maintain a higher pressure in the condenser coil than in the expansion coil, the compressor being in operation.” He points out that “The gas, instead of expanding behind a piston, is allowed to escape through a restricted opening * * * into the expansion coil" }, { "docid": "16056966", "title": "", "text": "fall within the general rule illustrated by the line of cases which hold that there is no invention involved in converting a large machine into a small one, or the reverse. That which is involved in the patents in suit is not merely a reduction in size. The new tubing is effective only by reason of its size. The reduction in the cross-sectional area of the tubing converted failure into success, and involved something more than a matter of degree. A result of this kind may constitute invention. Toledo Computing Scale Co. v. Computing Scale Co. (C. C. A.) 208 F. 410; Edison Electric Light Co. v. United States Electric Light Co. (C. C. A.) 52 F. 300. The real question is whether Sehlaieh’s discovery should have been obvious to persons skilled in the art. It is of assistance •in deciding this question to realize that the demand for very small capillary tubing had existed for a considerable period, and efforts had been made to produce it. The testimony before the court in the case at bar is convincing on this point. Archibald C. T. Isaac, a mechanical engineer employed by the General Electric Company, who has had considerable experience in flying and in the manufacture, amongst other things, of distance reading thermometers, testified that he had never come in contact with capillary tubing corrugated, as provided by Sehlaich. John M. Mackenzie, a manufacturer of small tubing, testified that in 1917 the smallest available tubing had an internal diameter of fifteen thousandths of an inch, and that the trade had no means of supplying tubing of smaller dimensions before Schlaieh’s discovery. An effort had been made to manufacture it, without success. It could be made in short pieces, but not in longer commercial' lengths, because the opening could not be kept free. Edmond Hodgkinson, the inventor above referred to, filed his application for patent in 1910. He recognized the desirability of getting the bore of a capillary tube as small as possible, and discovered a rather cumbersome method of inserting a wire. It never occurred to him to adopt the" }, { "docid": "16056956", "title": "", "text": "its bore was reduced to six or eight thousandths of an inch. The result was satisfactory to the government, Tor it was found that instruments made with the new tubing were sufficiently accurate. The claims of the patent may be divided into four groups: (1) Claims 1 and 22, which specify corrugated capillary tubing, or capillary tubing deformed to reduce the bore thereof. (2) Claims 4 and 28, which specify substantially capillary metallic tubing for thermometers and the like, having its wall formed of three or more longitudinally extending inwardly curved sections united at their adjoining edges. (3) Claims covering the instrument in combination with the tubing;* for instance, claims 20 and 22, which specify substantially a distance type thermometer having a bulb, an indicating gage, and corrugated capillary transmission tubing connecting the bulb and gage. (4) Claims 8, 9, 10, 17, and 21, covering the method and machine for manufacturing the tubing. Claims in groups 1, 2, and 4 belong in the first ease, relating to the patent for the tubing; and the claims in group 3 belong in the second case, relating to the instrument. It will be observed that the essential element of both applications is capillary tubing of the smallest pqssible bore, made by distorting or corrugating the exterior walls. Both applications were rejected by the Patent Office, as not involving invention, mainly because of the patent to Bourdon of August 2, 1852, and the above-mentioned patent to Hodgkinson of 1913. The Bourdon patent is well known, and his invention has become a standard part of instruments for measuring the pressure and temperature of fluids. It relates specifically to a pressure gage used in connection with the distance type of thermometer. The gage is connected with the capillary tubing at one end, while the bulb of the thermometer is connected at the other. Bourdon shows that, if a thin metallic tube is flattened and then bent from a straight line, it has the property of changing its form considerably when exposed to variations of internal or external pressure. An increase of internal pressure tends to bring" }, { "docid": "16056964", "title": "", "text": "one “with so fine a bore that the rise or fall of the liquid in it by capillary attraction is perceptible to the eye.” It is said that the Bourdon tube falls within this definition, and therefore anticipates the claim, since it is distorted in at least one of the illustrations into a star shape. But it is manifest that Schlaich had in mind, as the meaning of the term “capillary tubing,” not merely tubing capable of capillary attraction, but tubing of the minutest bore. In order to make this position the more clear, and therefore to show the limitations of the patent, the Schlaich specification was amended at the trial, so as to show that the term is intended to define tubing of the smallest capacity, in which the bore is of hairlike dimensions. Furthermore, it is stated in the amended specification that the term “capillary” should be used in its accepted meaning, as designating the pressure-transmitting tubing connecting the bulb of the instrument with the Bourdon spring, which is s.o shaped as to change its form in response to changes in internal pressure, and is therefore necessarily of much greater than capillary dimensions. These amendments are in line with other well-recognized definitions of the term “capillary,” as hairlike, such as that contained in the Century Dictionary. It seems to be clear that the invention has been so limited to tubing of the finest bore by these amendments that the monopoly of the patent will not be extended to other structures outside its proper scope, such, for instance, as the corrugated or deformed boiler tubes disclosed by the Serpollet patent of 1895 and other structures of the prior art. The Patent Office also contends that the question is not whether the tubing is smaller than previous tubing, but whether the corrugated tubes of Bourdon, especially those which were star-shaped, or T-shaped, in cross-section, would suggest to one shilled in the art the corrugated smaller tubing. It is said that the new tubing differs from the old merely in size, and is therefore not patentable. But the case does not" }, { "docid": "16056953", "title": "", "text": "forced into it by hand. Thereby the cross-sectional area of the tube and the volume of the liquid therein were very materially reduced. The Hodgkinson method was known to Sehlaieh, and was referred to in the specification of the tubing patent. Sehlaieh pointed out, however, that the method was not satisfactory, because of the difficulty of inserting the wire. In place thereof, Sehlaieh reduced the volume of the tube by reshaping it. He subjected it to external pressure- between rolls, so as to compress or squeeze it, producing grooves or corrugations. The result was that he obtained tubing of a capacity or cross-sectional area not only much less than that found in the smallest commercial drawn tubing, but much less than the capacity of Such drawn tubing when provided with a filling wire. The new tubing possessed the additional advantage that it could be readily bent without closing the opening. Drawn or flattened tubes, formerly made, not infrequently closed up at certain points and became useless when they were bent. - The qualifications and experience of the inventor in the art, and the manner in which the invention was made, throw considerable light upon the question of patentability. Schlaich was an experienced man in the instrument art, having had some 20 years? experience in the manufacture of heat indicators. For 8 years he was connected with the Schaeffer-Badenberg Company, the oldest manufacturers of such instruments in the world, and for 12 years with the Motometer Company. He was associated with the last-mentioned company in 1917, when this country entered the Great War. His employer was requested by the Army and Navy to develop a heat indicator for aeroplanes which required a much longer tube and much closer calibration than had been necessary in the manufacture of heat indicators for automobiles upon which, up until that time, the Motometer Company had been engaged. To fill this order Sehlaieh first made an instrument equipped with plain capillary tubing of the bore of fifteen-thousandths of an inch, containing a wire ten-thousandths of an inch in diameter. In other words, he used the Hodgkinson" }, { "docid": "16056952", "title": "", "text": "of pressure in the connecting tube. One way to avoid the error, or reduce it to a minimum, is to make the connecting tube so small that the expansion or contraction of the liquid therein will not materially affect the reading of the instrument. The manner in which this had been most efficiently done, prior to Sehlaieh, is shown in the patent to Hodgkin-son of June 3, 1913, upon which the tribunals of the Patent Office chiefly rely for the rejection of the patents in suit. Hodgkinson used a drawn metal tube, but found that it was impossible to reduce the caliber of its bore to anything like the bore of the ordinary glass thermometer stem, and at the same time maintain its uniformity. He therefore used a capillary metal tube having the smallest bore practicable, for ex-ample, a steel drawn tube of seven thirty-seconds of an inch external diameter, with a bore of approximately twenty-one thousandths of an inch, and slipped into this tube a wire of as large a diameter as could be forced into it by hand. Thereby the cross-sectional area of the tube and the volume of the liquid therein were very materially reduced. The Hodgkinson method was known to Sehlaieh, and was referred to in the specification of the tubing patent. Sehlaieh pointed out, however, that the method was not satisfactory, because of the difficulty of inserting the wire. In place thereof, Sehlaieh reduced the volume of the tube by reshaping it. He subjected it to external pressure- between rolls, so as to compress or squeeze it, producing grooves or corrugations. The result was that he obtained tubing of a capacity or cross-sectional area not only much less than that found in the smallest commercial drawn tubing, but much less than the capacity of Such drawn tubing when provided with a filling wire. The new tubing possessed the additional advantage that it could be readily bent without closing the opening. Drawn or flattened tubes, formerly made, not infrequently closed up at certain points and became useless when they were bent. - The qualifications and experience" }, { "docid": "23412696", "title": "", "text": "of the capillary, and the object of his improved construction was to enable the observer to see the spectrum where it is pure. It shows cylindrical electrodes. But there is no reference to electrodes having any particular function in the tube. The patent relates to the rise of a capillary within another tube. The Moore patents and tubes contribute the so-called “breather valve.” This valve was able to make a luminous tube that would have a long life, not because the gas would last long, but because it supplied the means of introducing new charges of gas every half minute. The Cooper Hewitt lamp is a mercury vapor lamp, and not a gas lamp. Nor is this inventor’s patent, No. 1,131,910, prior art to the first patent in suit. Traitel Marble Co. v. Hungerford Brass & Copper Co. (C. C. A.) 22 F.(2d) 259. Section 4886 of the Revised Statutes (35 USCA § 31; Comp. St. § 9430) makes only knowledge or use by others a bar, and such knowledge and use must be before his invention or discovery. The error below, we think, was reading into the claims of the particular method of pm’ifieation of the neon in the tube. Using this combination, the patent in suit has brought about a new and useful result, which is commercially new and has had substantial value, as shown by its reception in the trade. Whatever may be said of its simplicity or the previous knowledge of electrical engineering, it has proved to- be an invention of merit, a result of inventive thought. The rule is now well established that, for such inventive thought, protection should always be accorded the inventor. Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527; United Shirt & Collar Co. v. Beattie (C. C. A.) 149 F. 736; Marconi, etc., v. De Forest, etc. (C. C. A.) 243 F. 560. The commercial success obtained makes it apparent that the patent is most efficient, serviceable, and attractive. It has formed the basis of a substantial industry. Temco" }, { "docid": "9629761", "title": "", "text": "mechanic skilled in the art.” Sinclair & Carroll Co., Inc., v. Interchemical Corp., 65 S.Ct. 1143, 1145. Every element of the structure is old. The capillary tube is old, and its properties as a conveyor of fluids have been known since 1842. The gist of the claimed invention resides in inserting the capillary between the condenser and the evaporator, to restrict and regulate the flow of the refrigerant. The basic idea of restricting the flow from condenser to evaporator is old in the art. It was disclosed in Matthews’ “Elementary Mechanical Refrigeration,” published in 1912. Matthews, in illustrating the compression system of refrigeration, describes a figure comprising a condensing coil and a heating or expansion coil with the passage between the two “contracted to a sufficiently small cross section to maintain a higher pressure in the condenser coil than in the expansion coil, the compressor being in operation.” He points out that “The gas, instead of expanding behind a piston, is allowed to escape through a restricted opening * * * into the expansion coil below, in which a considerably lower back pressure is maintained through the efforts of the compressor which is constantly drawing gas from the lower coil and discharging it into the upper coil.” In passing the restricted opening, the conditions of temperature and pressure of gas drop to the original temperature and pressure. This restricted opening or orifice described by Matthews is the equivalent in function of the restrictor tube or capillary. As stated by one highly qualified expert, the orifice and the tube do not differ in principle. The Carpenter structure is anticipated in varying degrees by McVicar & White, British patent 11,177 (1896); Audiffren, 764,515 (1904), and Jaeger, 1,470,574 (1923), all prior to Carpenter. While the problem sought to be solved in McVicar & White is one of heat exchange, the drawings disclose a helically coiled tube between the condenser and the evaporator. Audiffren was not cited in the Patent Office. It discloses a hermetically sealed mechanism in which the refrigerant is fed to the evaporator through a pipe of such size “that it" }, { "docid": "16056950", "title": "", "text": "SOPER, District Judge. The plaintiffs in this case have brought two equity suits against the Commissioner of Patents, under R. S. § 4915 (35 USCA § 65; Comp. St. § 9460), to compel the issuance of letters patent upon two applications filed in the Pat ent Office and. therein denied. The decisions of the Patent Office were affirmed by the Court of Appeals of. the District of Columbia which ■ declared, without discussion, that it was not convinced that the Patent Office was Wrong, and therefore would not disturb its findings upon a highly technical subject. Herman Sehlaieh, one of the plaintiffs, is the applicant for the patents, and the Motometer Company, Inc., the other plaintiff, is his exclusive licensee. The invention in the first ease relates to the manufacture of small tubing, of substantially capillary bore, adapted for use in thermometers of the distance type, or for other similar purposes, where a fluid-filled transmission tube may be employed. The second invention is designed to provide an instrument comprised in part of such tubing for the indication of temperatures in connection with the internal combustion motors of aeroplanes or other vehicles. The gist of the invention, so far as this litigation is concerned, is the production of capillary tubing of the smallest possible bore, so as to secure accuracy in the measurement of temperatures in instruments of the distance type. A bulb containing fluid is located in such an instrument at the point whose temperature is to be ascertained, while the recording device is placed at a distance therefrom. Communication between the two points is established by a tube of considerable length, which is also filled with fluid. Since the connecting tube may not be subjected to the same temperature as the bulb, it follows that, the greater the volume of the liquid in the tube, the greater- the error in the registration of the temperature of the bulb. In other words, the temperature at the point at which the bulb is located» will not be accurately registered on the dial, because the latter will be affected by the change" }, { "docid": "14531444", "title": "", "text": "gases, and a definite area for the electrodes. In my opinion the spectral tubes are an analogous art, they are luminescent tubes, and that is what is described in each claim of the patent in suit, “a luminescent tube.” They were not pure tubes, regardless of whether it was possible to make them pure. There is no limitation of the patent in suit to signs, but it is for a “system of illumination by luminescent tubes” to be used for any purpose. I am convinced that the plaintiff’s expert was in error in his claim of a capillary phenomenon restricted to spectral tubes, and that the only difference between a speetral tube and a lighting tube is in degree or size. Claude claimed as his invention — previously purified neon; electrodes deprived of their occluded gases; electrodes having a surface area exceeding the critical area of 1.5 square decimeters per ampere to prevent vaporization. These are necessary elements, and, although the prior art shows that the advantage of obtaining pure neon was known, as also the depriving of the electrodes of their occluded gases, and that large electrodes were preferable to small ones, all of these elements are not shown in. any illuminating tube using a gaseous conductor which had a life long enough for practical purposes without refilling, which is in evidence or described in any publication in evidenep, nor are they all claimed in any patent in evidence, and Claude’s rule of relationship between cur? rent and electrode area is not specifically disclosed in any prior patent or publication. In so deciding I have not overlooked any of defendant’s evidence, especially the tubes forming names of gases constructed by the Bureau of Standards, which in my opinion were shown to have antedated the date of invention of the patent in suit, nor the Goetze catalogue which, in my opinion, was properly admitted in evidence; but, by the combination which Claude claimed as his invention, he produced an effective system of illumination, as distinguished from an experimental tube or light. The plaintiff cannot broadly claim invention in the statement" }, { "docid": "16056962", "title": "", "text": "testimony, that that which is referred to in his specification as the “upper or active end of the capillary tube” is nothing more than .the Bourdon tube or spring, which was in common use in Hodgkinson’s time at the registration end of distance thermometers. The invention consisted in reducing the cross-sectional area of the capillary tubing, which connected the Bourdon spring with the bulb of the thermometer. The Bourdon tube itself, as used by Hodgkinson, was not a part of the capillary tube. It was separate therefrom, and was much larger in dimension, since it was required to be of sufficient internal diameter' to receive the end of the capillary tube within it. Its diameter was about Vs2 of an inch, while the inside diameter of the capillary tube was about 21/iooo'of an inch. In other words, the inside diameter of \"the Bourdon tube was approximately 10 times the diameter of the capillary tube, and the cross-sectional area about 100 times as great. The Schlaich tubing, on the other hand, has a cross-sectional area less than one-third of the area of the capillary tube of Hodgkinson. The suggestion in the quoted sentence from the Hodgkinson patent, that it was possible'-to accurately gage the area of the active part of the tube, referred to the practice of forcing air pressure through the tube while it was being rolled opt, so as not to go so far in the operation as to completely close the passage in the coil, thereby rendering it useless. While Hodgkinson pointed out that the area of a capillary tube may be reduced by inserting a wire, he did not show that the same result could be carried to a much further degree by deforming or corrugating the tube. The contrast between the size of his smallest tube and that of Schlaich emphasizes the extent of the latter’s contribution to the art. The Patent Office makes the further point that the' question in issue hinges upon the word “capillary.” The broadest claim 1 calls merely for a corrugated capillary tube. The Standard Dictionary defines a capillary tube as" }, { "docid": "16056955", "title": "", "text": "system. The instrument, however, was rejected by the Bureau of Standards, because the tube area and the inaccuracy of registration were too great. The device was also objectionable because of the difficulty of manufacture. It was not possible to' secure-quantity production by introducing a wire. The next experiment of Sehlaich was to flatten out or crush the tube between two rolls. This attempt failed, because the tubing closed up entirely at certain points\" whenever an attempt was made to roll it flat enough to reduce the bore to the small dimension required. Furthermore, coiling of the wire for installation in an aeroplane affected the reading of the instrument, since it acted to some extent like the Bourdon tube hereinafter described. The result of this experiment was so unsatisfactory that no sample was submitted to the government. The final and successful step, which constituted the invention in suit, was to roll the tubing in a star shape; that is Jo say, to bring the sides together. By this means, the tube was corrugated or deformed, and its bore was reduced to six or eight thousandths of an inch. The result was satisfactory to the government, Tor it was found that instruments made with the new tubing were sufficiently accurate. The claims of the patent may be divided into four groups: (1) Claims 1 and 22, which specify corrugated capillary tubing, or capillary tubing deformed to reduce the bore thereof. (2) Claims 4 and 28, which specify substantially capillary metallic tubing for thermometers and the like, having its wall formed of three or more longitudinally extending inwardly curved sections united at their adjoining edges. (3) Claims covering the instrument in combination with the tubing;* for instance, claims 20 and 22, which specify substantially a distance type thermometer having a bulb, an indicating gage, and corrugated capillary transmission tubing connecting the bulb and gage. (4) Claims 8, 9, 10, 17, and 21, covering the method and machine for manufacturing the tubing. Claims in groups 1, 2, and 4 belong in the first ease, relating to the patent for the tubing; and the claims" }, { "docid": "16056963", "title": "", "text": "than one-third of the area of the capillary tube of Hodgkinson. The suggestion in the quoted sentence from the Hodgkinson patent, that it was possible'-to accurately gage the area of the active part of the tube, referred to the practice of forcing air pressure through the tube while it was being rolled opt, so as not to go so far in the operation as to completely close the passage in the coil, thereby rendering it useless. While Hodgkinson pointed out that the area of a capillary tube may be reduced by inserting a wire, he did not show that the same result could be carried to a much further degree by deforming or corrugating the tube. The contrast between the size of his smallest tube and that of Schlaich emphasizes the extent of the latter’s contribution to the art. The Patent Office makes the further point that the' question in issue hinges upon the word “capillary.” The broadest claim 1 calls merely for a corrugated capillary tube. The Standard Dictionary defines a capillary tube as one “with so fine a bore that the rise or fall of the liquid in it by capillary attraction is perceptible to the eye.” It is said that the Bourdon tube falls within this definition, and therefore anticipates the claim, since it is distorted in at least one of the illustrations into a star shape. But it is manifest that Schlaich had in mind, as the meaning of the term “capillary tubing,” not merely tubing capable of capillary attraction, but tubing of the minutest bore. In order to make this position the more clear, and therefore to show the limitations of the patent, the Schlaich specification was amended at the trial, so as to show that the term is intended to define tubing of the smallest capacity, in which the bore is of hairlike dimensions. Furthermore, it is stated in the amended specification that the term “capillary” should be used in its accepted meaning, as designating the pressure-transmitting tubing connecting the bulb of the instrument with the Bourdon spring, which is s.o shaped as to" }, { "docid": "23412697", "title": "", "text": "his invention or discovery. The error below, we think, was reading into the claims of the particular method of pm’ifieation of the neon in the tube. Using this combination, the patent in suit has brought about a new and useful result, which is commercially new and has had substantial value, as shown by its reception in the trade. Whatever may be said of its simplicity or the previous knowledge of electrical engineering, it has proved to- be an invention of merit, a result of inventive thought. The rule is now well established that, for such inventive thought, protection should always be accorded the inventor. Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527; United Shirt & Collar Co. v. Beattie (C. C. A.) 149 F. 736; Marconi, etc., v. De Forest, etc. (C. C. A.) 243 F. 560. The commercial success obtained makes it apparent that the patent is most efficient, serviceable, and attractive. It has formed the basis of a substantial industry. Temco Electric Motor Co. v. Apco Mfg. Co., 48 S. Ct. 170, 72 L. Ed. — (U. S. Sup. Ct. Jan. 3, 1928). As to the second patent in suit, No. 1,-191,495, it is clear that a tube made within the specifications and claims of the first patent in suit would practice the claimed invention of the second patent. The first patent in suit specifies: “Now, if neon behaves in such a different manner, it is due to the property, hitherto unknown, of being absorbed to a remarkably less degree by the electrodes than all the other gases, and especially helium.” Applying a tube made in accordance with the first patent in suit to the claim sued on in this second patent, it will be observed that it comprises a elosed receptacle containing electrodes having a surface area large enough to practically avoid absorption of neon during operation. The two patents specify identically the same thing with respe'et to the size of the electrode. The first necessitated the establishment, within the,receptacle, of highly rarefied atmosphere containing" }, { "docid": "16056967", "title": "", "text": "at bar is convincing on this point. Archibald C. T. Isaac, a mechanical engineer employed by the General Electric Company, who has had considerable experience in flying and in the manufacture, amongst other things, of distance reading thermometers, testified that he had never come in contact with capillary tubing corrugated, as provided by Sehlaich. John M. Mackenzie, a manufacturer of small tubing, testified that in 1917 the smallest available tubing had an internal diameter of fifteen thousandths of an inch, and that the trade had no means of supplying tubing of smaller dimensions before Schlaieh’s discovery. An effort had been made to manufacture it, without success. It could be made in short pieces, but not in longer commercial' lengths, because the opening could not be kept free. Edmond Hodgkinson, the inventor above referred to, filed his application for patent in 1910. He recognized the desirability of getting the bore of a capillary tube as small as possible, and discovered a rather cumbersome method of inserting a wire. It never occurred to him to adopt the much more simple, and, as it turns out, effective, way of reducing the bore by corrugation or distortion of the tubing. All of these men answer to the description of persons skilled in the art, but the solution of the problem was not obvious to them. The particular utility of the tubing in connection with distance thermometers is also clearly shown by the evidence. The smaller cross-sectional area makes possible a great increase in the accuracy of the instrument. Amongst other advantages is the fact that alcohol may be used, instead of mercury, which renders available copper or bronze, instead of steel, the use of which involves corrosion and harmful magnetic effects. Corrugation of the tubing eliminates the cost of the filler wire, as well as the expense of putting it in. Corrugated tubing is of greater flexibility, and the bore is not subject to being closed by sharp bending. It has gone into wide use in the manufacture of the instruments, and is generally accepted as solving the difficulty in the Army and Navy" }, { "docid": "10524631", "title": "", "text": "new organization of old elements is such that it produces a new mode of operation and a beneficial result, there may be a patentable invention. The decisions to this effect are very numerous. A long list of them is shown in 1 Rob. Pat. § 155, note 4. The case of Star Brass Works v. General Electric Co., 49 C. C. A. 409, 111 Fed. 398, recently decided by this court, is a very pertinent illustration of a patentable invention shown by the peculiar location of one of the elements of a combination of old elements. It was an invention relating to the construction of the head of a trolley employed in operating cars by electrical power, and consisted in so locating the brush which takes off the current from the circuit as to diminish the friction between the hub of the wheel and the brush to a greater extent than had previously been done, and also, by putting the brush inside the frame, protecting it from' injuries to which it had theretofore been exposed. We have next to consider the question of infringement. For this purpose it will be convenient to show in the first place the figures illustrating the construction of the furrow-opening and seed sowing and covering devices used by the defendant the Dowagiac Manufacturing Company, for all these devices are more or less involved in the use of Packham’s invention: Fig. i shows the land side of this defendant’s opener, and by com-pairing it with Packham’s, which is shown on a previous page of this opinion, it will be seen that they are practically identical. Fig. 2 shows the reverse side of the defendant’s shield and tube facing the disc. Contrasted with this, we here ■ show, in Fig. 3, the reverse side of Packham’s shield and tube: The only difference is that the seed tube in the defendant’s structure is carried down on the shield lower than in Packham’s, but it has, though in a diminished degree, the same provision, by cutting away one side of the tube, for deflecting the seed against the disc." }, { "docid": "16056968", "title": "", "text": "much more simple, and, as it turns out, effective, way of reducing the bore by corrugation or distortion of the tubing. All of these men answer to the description of persons skilled in the art, but the solution of the problem was not obvious to them. The particular utility of the tubing in connection with distance thermometers is also clearly shown by the evidence. The smaller cross-sectional area makes possible a great increase in the accuracy of the instrument. Amongst other advantages is the fact that alcohol may be used, instead of mercury, which renders available copper or bronze, instead of steel, the use of which involves corrosion and harmful magnetic effects. Corrugation of the tubing eliminates the cost of the filler wire, as well as the expense of putting it in. Corrugated tubing is of greater flexibility, and the bore is not subject to being closed by sharp bending. It has gone into wide use in the manufacture of the instruments, and is generally accepted as solving the difficulty in the Army and Navy and elsewhere. The conclusion is that the claims of the patents covering corrugated capillary tubing, per se, tubing for thermometers and the like, and the instrument incorporating the tubing and the methods of manufacture, should be granted. There are, however, two claims in the first patent, relative to methods of manufacture, which were rightfully refused, to wit, claims 17 and 21. These call for a combination or pair of rolls, shaped to deform the tubing fed between them, and casing-holding means mounted adjacent to said rolls. They are not limited to capillary tubing. They were rejected by the Patent Office, on the ground that they did not involve invention, in consideration of certain prior patents, to wit, the patent to Koenig, No. 819,143 of 1906, the British patent to Holland of 1908, and the patent to Pareells of 1916. Since these claims are not eon-fined to tubes of capillary size, it is the con elusion of the court that their rejection by the Patent Office was correct: Decrees in accordance with this opinion will be" } ]

[ { "docid": "18376649", "title": "", "text": "also attacks the government's use of the phrase \"which [administrative] record is the best evidence of its contents.” The court is unpersuaded that the government intended to invoke Fed.R.Evid. 1001-1004 by its choice of phraseology as plaintiff alleges. If the government did intend to invoke Fed.R.Evid. 1001-1004, it is irrelevant at this point and also harm less. The importance and relevance of the administrative record will be discussed, infra. . Rule 8(e) provides: (e) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. . Rule 12© provides: Motion To Strike. Upon motion made by a party before responding to a pleading, or if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon him or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. . Section 751(a) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675(a) requires that the ITA conduct at least one review annually in which it determines the amount of any anti-dumping duty, the results of which must be published in the Federal Register. See Kyowa Gas Chemical Industry Co., Ltd. v. United States, supra, at 888, n. 1; see also Smith Corona Group, Consumer Products Division v. United States, 1 C.I.T. 89, 507 F.Supp. 1015 (1980). . Rule 56.1(c) states: In addition to the other requirements prescribed by these rules, the motion papers and briefs submitted on the motion, either contesting or supporting the agency determination, shall include a statement setting forth in separate numbered paragraphs: (1) The administrative determination sought to be reviewed with appropriate reference to the Federal Register. (2) The issues of law presented together with the reasons for contesting or supporting the" } ]

[ { "docid": "21799281", "title": "", "text": "of comparable merchandise” and has “critically superior” data than does Thailand. CATC Mem. at 2, 6, 7. Jacobi and CATC also contend that Commerce wrongly interpreted the term “significant producer.” Jacobi Mem. at 13; CATC Mem. at 5-6. Commerce argues that (1) its determination that the Philippines is not economically comparable to China is supported by substantial evidence, (2) its determination that Thailand is a significant producer is adequately supported and rests on a sound interpretation of the term, and (3) it reasonably relied on Thai data. Gov. Resp. at 28-43. Calgon asserts that record evidence establishes that Thailand meets each of the statutory criteria and, thus, Commerce need not have considered the Philippines. Calgon Resp. at 16, 29. The court addresses Parties’ arguments as to each of the statutory criteria, in turn. b. Economic Comparability Jacobi contends that Commerce’s determination that the Philippines’ per capita GNI falls outside the range of countries economically comparable to China “is factually incorrect.” Jacobi Mem. at 14. According to Jacobi, “the 2013 GNI data demonstrate that the Philippines is as economically comparable to China as in previous years when Commerce found the Philippines to be economically comparable”; that, in fact, the Philippines’ 2013 per capita GNI “was even closer to China’s than ... in previous years.” Jacobi Mem. at 14,15. In light of Commerce’s previous selection of the Philippines as the primary surrogate country, Jacobi argues that Commerce’s determination that it lacked economic comparability for this POR was “arbitrary and capricious.” Jacobi Mem. at 15 (citing Juancheng Kangtai Chem. Co. v. United States, 39 CIT -, 2015 WL 4999476 (2015)). Commerce contends that it “is not required ... to use the same surrogate country that it used in previous reviews,” and it “selects the primary surrogate country for each segment of a proceeding based on the record of that particular segment.” Gov. Resp. at 29. Commerce further contends that it “dropped the Philippines from its surrogate country list” because 2013 GNI data demonstrated that it had become “less economically comparable to China over time,” such that “the Philippines’ and China’s per capita GNI" }, { "docid": "21799274", "title": "", "text": "rejecting India as a potential surrogate country; remanding for further explanation of how Commerce determined the range of GNIs reflected on OP’s list of potential surrogate countries). In asserting that Commerce should have weighed the Philippines’ fulfillment of all three statutory criteria, Jacobi and CATC would misapply several opinions from this court addressing Commerce’s selection of a surrogate country from among two countries on OP’s list. For example, Jacobi relies on the following passage from Ad Hoc Shrimp: Because none of Commerce’s three surrogate country eligibility criteria is preeminent, it follows that relative strengths and weaknesses among potential surrogates must be weighed by evaluating the extent to which the potential surrogates satisfy each of the three criteria. Jacobi Mem. at 12 (citing Ad Hoc Shrimp, 882 F.Supp.2d at 1371, 1374-75) (emphasis omitted); see also CATC Mem. at 4. However, Ad Hoc Shrimp addresses Commerce’s policy of treating all countries on OP’s list as equally economically comparable. 882 F.Supp.2d at 1374. The passage Jacobi relies on reflects the court’s finding that Commerce may not ignore relative differences in economic comparability and data quality when deciding which of the listed countries to select as the primary surrogate country. Id. at 1375 (“Because Commerce has provided no reasonable explanation as to why potentially slight differences in data quality necessarily outweigh potentially large differences in economic comparability, a blanket policy of simply refusing to engage in this inquiry does not amount to reasoned decision-making.”). CATC’s reliance on a similar passage from Amanda Foods is also misplaced. See CATC Mem. at 4 (quoting Amanda Foods, 33 C.I.T. at 1413, 647 F.Supp.2d at 1376 (“Nor has Commerce explained why the difference between Bangladesh and Vietnam, in per capita GDP, is not relevant in this case or why the difference in economic similarity to Vietnam is outweighed by the differences in quality of data between Bangladesh and India.”)). CATC omits the next sentence, however, in which the court admonishes Commerce for “adopting] a policy of treating all countries on the surrogate countnj list as being equally comparable to Vietnam.” Amanda Foods, 33 C.I.T. at 1413, 647 F.Supp.2d" }, { "docid": "21799252", "title": "", "text": "added tax (“VAT”). See generally Confidential Pls. Jacobi Carbons AB and Jacobi Carbons, Inc.’s Mot. for J. on the Agency R. and Pls.’ Br. in Supp. of their Mot. for J. on the Agency R. (“Jacobi Mem.”), ECF No. 51; Pls. Carbon Activated Tianjin Co., Ltd., Jilin Bright Future Chemicals Company, Ltd., Ningxia Mineral and Chemical Limited, Shanxi DMD Corporation, Shanxi Industry Technology Trading Co., Ltd., Shanxi Sincere Industrial Co., Ltd., Tancarb Activated Co., Ltd., and Tianjin Maijin Industries Co., Ltd. Mot. for J. on the Agency R., ECF No. 59; Pis. Carbon Activated Tianjin Co., Ltd., Jilin Bright Future Chemicals Company, Ltd., Ningxia Mineral and Chemical Limited, Shanxi DMD Corporation, Shanxi Industry Technology Trading Co., Ltd., Shanxi Sincere Industrial Co., Ltd., Tancarb Activated Co., Ltd., and Tianjin Maijin Industries Co., Ltd. Mem. in Supp. of Mot. for J. on the Agency R. (“CATC Mem.”), ECF No. 59-2 (incorporating Jacobi’s arguments and providing additional arguments on all issues); Pl.-Intervenor Ningxia Huahui Activated Carbon Co., Ltd.’s Rule 56.2 Mot. for J. on the Agency R. (“Huahui Mem.”), ECF No. 58 (incorporating Jacobi’s arguments regarding surrogate country and surrogate value selection, adopting Jacobi’s arguments regarding VAT and making additional arguments thereto); Mot. of GDLSK Pl.-Intervenors for J. on the Agency R. under USCIT Rule 56.2 and Mem. of Law in Supp. of GDLSK Pis.’ Rule 56.2 Mot. for J. on the Agency R. (“GDLSK Mem.”), ECF No. 60 (adopting all arguments made by Jacobi and providing additional argument regarding the VAT). For the following reasons, the court remands the determination to Commerce to clarify and, if necessary, revise its findings on the issues of the economic comparability and significant production of Thailand, and the irrecoverable VAT calculation. The court defers ruling on Plaintiffs’ challenges to Commerce’s surrogate value selections pending the results of the redetermination. Background I. Preliminary Proceedings On May 29, 2014, Commerce initiated AR7 on certain activated carbon from China for the period of review (“POR”) April 1, 2013 to March 1, 2014. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 79 Fed. Reg. 30,-809 (Dep’t Commerce May 29, 2014)," }, { "docid": "10173016", "title": "", "text": "647 F.Supp. 932, 934 (1986) (citation omitted). The crux of Ng's argument appears to be Ng’s belief that Plaintiff's responses failed to adduce evidence of his liability. See Ng’s MSJ at 18, 24. However, Ng’s characterization of Plaintiff’s discovery responses is not relevant to the court’s disposition of the pending summary judgment motions, which depends upon the extent to which material facts are undisputed. See USCIT Rule 56(c). To make that determination, the court reviews Parties’ statements of facts and responses thereto, and relevant record documents, while taking into account Parties' respective arguments aboút whether the undisputed facts demonstrate that summary judgment is appropriate. See USCIT Rules 56,- 56.3. Accordingly, the court will disregard Ng’s discovery-related arguments in its assessment of whether summary judgment should issue; however, striking those arguments is not merited. See Jimlar Corp., 10 CIT at 673, 647 F.Supp. at 934 (granting a motion to strike is an \"extraordinary remedy,” and should only occur when “there has been a flagrant disregard of the rules of court”). For the same reasons, Ng’s discussion about the Government's motivation for suing him in his individual capacity, Ng's MSJ at 30-35, has no bearing on the propriety of summary judgment for Ng or the Government. . Ng further contends that Plaintiff cannot rely on piercing the corporate veil because it did not allege that theory of liability in the complaint. Ng’s MSJ at 35-36; Ng’s Reply at. 12-13 (Plaintiff’s alternative theories of liability may be relevant in a subsequent action but not the instant action). Plaintiff did not allege a veil piercing claim against Ng or facts supporting a veil piercing claim, See generally Compl. At oral argument, Plaintiff confirmed that it was not seeking to pierce the corporate veil. Oral Arg. 1:42:18-1:42:24. Accordingly, that aspect of Ng’s motion is moot. . Trek Leather analyzed the scope of the term \"introduce” pursuant to § 1592(a)(1)(A); it did not address the scope of the term \"enter” or the individual defendant’s level of culpability pursuant to § 1592(e), Trek Leather, 767 F.3d at 1295 (defining the issues before the court); id. at 1297'" }, { "docid": "21799348", "title": "", "text": "none of the three surrogate country eligibility criteria—economic comparability, significant production of comparable merchandise, and quality data—is preeminent. \"Xciting Policy Bulletin 04.1 (\"[T]he relative importance that [Commerce] attaches to each [eligibility criterion] will necessarily vaiy depending on the specific facts in each case”)) (first alteration added). While Jacobi correctly notes that Policy Bulletin 04.1 acknowledges that it may be \"more appropriate ... to address economic comparability only after the significant producer of comparable merchandise requirement is met,” Jacobi Mem. at 11 (quoting Policy Bulletin 04.1 at 4), that situation typically arises when the subject merchandise is \"unusual or unique” because few countries produce it, or because \"major inputs are not widely traded internationally, Policy Bulletin 04.1 at 4. Jacobi does not contend, nor is there record evidence suggesting, that activated carbon is unusual or unique, or is produced from inputs that are not widely traded. . The regulation directed \"[t]he Secretary [to] use regression-based wage rates reflective of the observed relationship between wages and national income in market economy countries. The Secretary will calculate tire wage rate to be applied in nonmarket economy proceedings each year. The calculation will be based on current data, and will be made available to the public.” 19 C.F.R. § 351.408(c)(3). . CATC's argument that the statutory mandate to use the “best available information” elevates Commerce’s data criterion such that it \"is, at a minimum, equally as critical” as the economic comparability and significant production criteria, is a red herring. See CATC Mem. at 3. Use of the “best available information” is contingent upon Commerce first selecting an \"appropriate” market economy country from which to value factors of production. 19 U.S.C. § 1677b(c)(1)(B). In other words, Congress has instructed Commerce to first select an appropriate market economy country (or countries), and then evaluate, from the range of data available from those countries, what constitutes the \"best available information.” Congress has not instructed Commerce to first look for the “best available information” from some unspecified list of countries and then decide which of that information comes from countries that are economically comparable significant producers of comparable" }, { "docid": "21799349", "title": "", "text": "wage rate to be applied in nonmarket economy proceedings each year. The calculation will be based on current data, and will be made available to the public.” 19 C.F.R. § 351.408(c)(3). . CATC's argument that the statutory mandate to use the “best available information” elevates Commerce’s data criterion such that it \"is, at a minimum, equally as critical” as the economic comparability and significant production criteria, is a red herring. See CATC Mem. at 3. Use of the “best available information” is contingent upon Commerce first selecting an \"appropriate” market economy country from which to value factors of production. 19 U.S.C. § 1677b(c)(1)(B). In other words, Congress has instructed Commerce to first select an appropriate market economy country (or countries), and then evaluate, from the range of data available from those countries, what constitutes the \"best available information.” Congress has not instructed Commerce to first look for the “best available information” from some unspecified list of countries and then decide which of that information comes from countries that are economically comparable significant producers of comparable merchandise, nor has Congress instructed Commerce to simultaneously weigh the statutory factors. Indeed, Commerce has expressly rejected such an approach as \"unfeasible.” Policy Bulletin 04.1 at 5 n.2 (declining to assign a \"composite grade” on the basis of each country’s fulfillment of the economic comparability and significant production of comparable merchandise criteria, which is then combined with \"an assessment or grading of factors data quality and completeness”); see also Fresh Garlic I, 121 F.Supp.3d at 1341. CATC cites no authority for its proposition and its argument is unavailing. . Plaintiffs insert a comparative element framing the issue as whether substantial evidence supports Commerce’s decision to select Thailand over the Philippines. See Jacobi Mem. at 13 (insufficient evidence supported \"Commerce’s conclusion that Thailand was a better surrogate country than the Philippines”) (emphasis added) (capitalization omitted); CATC Mem. at 2 (\"[Commerce] should select the Philippines ....”). Although the court must consider \"evidence that fairly detracts from the substantiality of the evidence,\" Nippon Steel Corp., 337 F.3d at 1379 (internal quotation marks and citation omitted), it may not" }, { "docid": "21799267", "title": "", "text": "the basis of economic comparability and declined to consider its significant production of comparable merchandise and its data qual ity. See Jacobi Mem. at 9-13; see also CATO Mem. at 5 (asserting that “[Commerce] cannot lawfully make one criterion a threshold requirement ....”). CATC argues that the statutory mandate to use the “best available information” elevates Commerce’s data criterion such that it “is, at a minimum, equally as critical” as the economic comparability and significant comparable production criteria. CATC Mem. at 3. Jacobi and CATC point to several decisions from this court as support for the proposition that “economic comparability alone cannot be used to determine a reasonable primary surrogate country.” Jacobi Mem. at 11-12 (citing Vinh Hoan Corp. v. United States, 39 CIT -, 49 F.Supp.3d 1285, 1303 (2015), Ad Hoc Shrimp Trade Action Committee v. United States, 36 CIT -, 882 F.Supp.2d 1366, 1374-75 (2012), and Allied Pac. Food (Dalian) Co. Ltd. v. United States, 32 C.I.T. 1328, 587 F.Supp.2d 1330, 1357 (2008)); CATC Mem. at 3-4 (citing Ad Hoc Shrimp, 882 F.Supp.2d at 1374, and Amanda Foods (Vietnam) Ltd. v. United States (“Amanda Foods”), 33 C.I.T. 1407, 1413, 647 F.Supp.2d 1368, 1376-78 (2009)). Commerce contends that Plaintiffs failed to raise arguments related to its surrogate country methodology in the underlying administrative proceeding, and, thus, failed to exhaust their administrative remedies. Gov. Resp. at 20-23. Commerce further contends that it properly applied Policy Bulletin 04.1 in selecting Thailand as the primary surrogate country. Gov. Resp. at 18-20, 23-28. b. Administrative Exhaustion 1. Legal Standard “[T]he Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies.” 28 U.S.C. § 2637(d). Exhaustion of administrative remedies is a doctrine that holds “that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Consol. Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed. Cir. 2003) (internal quotation marks and citation omitted). Commerce regulations require parties to raise all arguments they wish to preserve in their case briefs to the agency. See 19 C.F.R.§ 351.309. This requirement permits" }, { "docid": "21799275", "title": "", "text": "differences in economic comparability and data quality when deciding which of the listed countries to select as the primary surrogate country. Id. at 1375 (“Because Commerce has provided no reasonable explanation as to why potentially slight differences in data quality necessarily outweigh potentially large differences in economic comparability, a blanket policy of simply refusing to engage in this inquiry does not amount to reasoned decision-making.”). CATC’s reliance on a similar passage from Amanda Foods is also misplaced. See CATC Mem. at 4 (quoting Amanda Foods, 33 C.I.T. at 1413, 647 F.Supp.2d at 1376 (“Nor has Commerce explained why the difference between Bangladesh and Vietnam, in per capita GDP, is not relevant in this case or why the difference in economic similarity to Vietnam is outweighed by the differences in quality of data between Bangladesh and India.”)). CATC omits the next sentence, however, in which the court admonishes Commerce for “adopting] a policy of treating all countries on the surrogate countnj list as being equally comparable to Vietnam.” Amanda Foods, 33 C.I.T. at 1413, 647 F.Supp.2d at 1376 (emphasis added). Ad Hoc Shrimp and Amanda Foods are inapposite when, as here, Plaintiffs are advocating for the selection of a country that OP did not include on its list. Allied Pac., another case relied on by Jacobi, addresses the conjunctive nature of the statutory selection criteria. In particular, Allied Pac. considers whether Commerce’s use of “regression analysis [pursuant to 19 C.F.R. § 351.408(c)(3) ] based on a basket of countries not economically comparable to China” to determine the surrogate labor rate complies with Congress’s instruction to value, “to the extent possible,” factors of production in market economy countries that are economically comparable and significant producers of comparable merchandise. Allied Pac., 32 C.I.T. at 1352, 1357, 587 F.Supp.2d at 1351, 1355 (“Congress’s use of the conjunctive in § 1677b(c)(4)(A) to join the two criteria signifies congressional intent that, to the extent possible, Commerce must use prices or costs that satisfy the two criteria simultaneously.”)- After extensive analysis, the court held that 19 C.F.R. § 351.408(c)(3) conflicted with 19 U.S.C. § 1677b(c) and, thus," }, { "docid": "10173015", "title": "", "text": "his \"severely impoverished economic position,” he could not afford to file a motion to compel further responses. Ng’s MSJ at 20 n.4. Plaintiff asks the court to strike or disregard Ng’s arguments. Pl.’s XMSJ at 40-43. Plaintiff contends that Ng violated the scheduling order by belatedly raising his discovery argument, which is predicated on the false assertion that Plaintiff ignored his letters. Pl.’s XMSJ at 41-42 (citing Pl.’s Ex 3, ECF No. 62-8 (Plaintiff's responses to Ng's, Sterling's, and Ng Branding’s discovery letters) and Pl.’s Ex. 4, ECF No. 62-9 (email from defense counsel acknowledging receipt of Plaintiff's responses to Sterling's and Ng Branding’s discovery letters)). USCIT Rule 12(f) provides that the court may strike \"an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The court has broad discretion in disposing of motions to strike. Beker Indus. Corp. v. United States, 7 CIT 199, 200, 585 F.Supp. 663, 665 (1984). Nevertheless, \"motions to strike are not favored by the courts and are infrequently granted.” Jimlar Corp. v. United States, 10 CIT 671, 673, 647 F.Supp. 932, 934 (1986) (citation omitted). The crux of Ng's argument appears to be Ng’s belief that Plaintiff's responses failed to adduce evidence of his liability. See Ng’s MSJ at 18, 24. However, Ng’s characterization of Plaintiff’s discovery responses is not relevant to the court’s disposition of the pending summary judgment motions, which depends upon the extent to which material facts are undisputed. See USCIT Rule 56(c). To make that determination, the court reviews Parties’ statements of facts and responses thereto, and relevant record documents, while taking into account Parties' respective arguments aboút whether the undisputed facts demonstrate that summary judgment is appropriate. See USCIT Rules 56,- 56.3. Accordingly, the court will disregard Ng’s discovery-related arguments in its assessment of whether summary judgment should issue; however, striking those arguments is not merited. See Jimlar Corp., 10 CIT at 673, 647 F.Supp. at 934 (granting a motion to strike is an \"extraordinary remedy,” and should only occur when “there has been a flagrant disregard of the rules of court”). For the same reasons, Ng’s discussion" }, { "docid": "21799266", "title": "", "text": "First, OP compiles a list of potential surrogate countries that are economically comparable to the NME based on per capita GNI as reported by the World Bank. Policy Bulletin 04,1 at 2. Potential surrogate countries “are not ranked” and are “considered equivalent in terms of economic comparability.” Id. Second, among the potential surrogates, Commerce identifies countries that produce comparable merchandise. Id. Third, Commerce determines whether any of the potential surrogates identified in step two are significant producers of comparable merchandise. Id. at 3. Whether production is “significant” is generally determined in relation to “world production of, and trade in, comparable merchandise.” Id. Finally, if two or more countries fulfill the first three criteria, Commerce selects as the primary surrogate the country with the best surrogate value data. Id. at 4; see also Jiaxing Bro. Fastener Co., Ltd., 822 F.3d at 1293 (citation omitted) (describing the four-step process). ii. Commerce’s Sequential Approach to Surrogate Country Selection a. Parties’ Contentions Jacobi contends that Commerce erred when it excluded the Philippines as a potential surrogate country solely on the basis of economic comparability and declined to consider its significant production of comparable merchandise and its data qual ity. See Jacobi Mem. at 9-13; see also CATO Mem. at 5 (asserting that “[Commerce] cannot lawfully make one criterion a threshold requirement ....”). CATC argues that the statutory mandate to use the “best available information” elevates Commerce’s data criterion such that it “is, at a minimum, equally as critical” as the economic comparability and significant comparable production criteria. CATC Mem. at 3. Jacobi and CATC point to several decisions from this court as support for the proposition that “economic comparability alone cannot be used to determine a reasonable primary surrogate country.” Jacobi Mem. at 11-12 (citing Vinh Hoan Corp. v. United States, 39 CIT -, 49 F.Supp.3d 1285, 1303 (2015), Ad Hoc Shrimp Trade Action Committee v. United States, 36 CIT -, 882 F.Supp.2d 1366, 1374-75 (2012), and Allied Pac. Food (Dalian) Co. Ltd. v. United States, 32 C.I.T. 1328, 587 F.Supp.2d 1330, 1357 (2008)); CATC Mem. at 3-4 (citing Ad Hoc Shrimp, 882 F.Supp.2d" }, { "docid": "21799280", "title": "", "text": "sum, Commerce has discretion to develop a reasonable methodology to implement its surrogate country selection criteria. Jiaxing Bro. Fastener Co., Ltd., 822 F.3d at 1298. This court has consistently rejected challenges to Commerce’s exclusion of particular countries as potential surrogate countries based on their lack of economic comparability. See Clearon I, 2014 WL 3648332, at *11 (noting this court’s consistent “approach [to] the selection process [that treats] per capita GNI ranking as a threshold statutory criterion that must be met before the other criteria are considered”). Plaintiffs offer nothing new that merits a different outcome here. iii. Whether Substantial Evidence Supports Commerce’s Selection of Thailand as the Primary Surrogate Country a. Parties’ Contentions Jacobi contends that “Commerce’s determination that Thailand was a better surrogate country than the Philippines” rests on unsupported factual findings regarding the Philippines’ economic comparability, Thailand’s status as a significant producer, and the quality of Thai data. Jacobi Mem. at 13. CATC asserts that Commerce should have selected the Philippines as the primary surrogate country because it “is the most significant producer of comparable merchandise” and has “critically superior” data than does Thailand. CATC Mem. at 2, 6, 7. Jacobi and CATC also contend that Commerce wrongly interpreted the term “significant producer.” Jacobi Mem. at 13; CATC Mem. at 5-6. Commerce argues that (1) its determination that the Philippines is not economically comparable to China is supported by substantial evidence, (2) its determination that Thailand is a significant producer is adequately supported and rests on a sound interpretation of the term, and (3) it reasonably relied on Thai data. Gov. Resp. at 28-43. Calgon asserts that record evidence establishes that Thailand meets each of the statutory criteria and, thus, Commerce need not have considered the Philippines. Calgon Resp. at 16, 29. The court addresses Parties’ arguments as to each of the statutory criteria, in turn. b. Economic Comparability Jacobi contends that Commerce’s determination that the Philippines’ per capita GNI falls outside the range of countries economically comparable to China “is factually incorrect.” Jacobi Mem. at 14. According to Jacobi, “the 2013 GNI data demonstrate that the Philippines" }, { "docid": "21799299", "title": "", "text": "1.8% of global exports). Further, the mere fact of Thai land’s ranking on a list of exporters does not override Commerce’s responsibility to explain, with substantial supporting evidence, the significance of that ranking in terms of its effect on global trade. Cf. Fresh Garlic II, 180 F.Supp.3d at 1243 (“Determining that because the Philippines is in the top half of fresh garlic producers it is a significant producer is arbitrary and unreasonable.”). Accordingly, the court remands this issue for reconsideration and further explanation. d. Data Quality/Surrogate Value Selections Plaintiffs present several challenges to Commerce’s selection of a Thai financial statement to value financial ratios and Thai HS code 4402.90.1000 to value carbonized material. See Jacobi Mem. at 24-30, 34—44; CATC Mem. at 7, 9-18. To value the NME respondent’s factors of production, Commerce must select the “best available information” from one or more market economy countries that are economically comparable to the NME country and are significant producers of comparable merchandise. 19 U.S.C. § 1677b(c)(1)(B), (c)(4). Because the court is remanding the issues of economic comparability and significant production to the agency, on remand, Commerce may decide to select a different country as the primary surrogate country and, thus, may need to reconsider its surrogate value selections. This is particularly true given Commerce’s regulatory preference for using data from a single surrogate country. See 19 C.F.R. § 351.408(c)(2). Accordingly, to avoid rendering an essentially advisory opinion, the court defers consideration of Plaintiffs’ surrogate value challenges pending the results of the redetermination. B. Adjustment for Chinese Value Added Tax Plaintiffs contend that Commerce lacks authority to deduct irrecoverable VAT from Jacobi’s U.S. sales price, and Commerce’s method of calculating the VAT adjustment is not supported by substantial evidence. Jacobi Mem. at 44; CATC Mem. at 18; Huahui Mem. at 2; GDLSK Mem. at 7. Commerce contends its deduction of irrecoverable VAT from Jacobi’s CEP was lawful and supported by substantial evidence. Gov. Resp. at 54; see also Calgon Resp. at 44. i. Overview of Commerce’s VAT Adjustment Pursuant to 19 C.F.R. § 351.401 and a 2012 change in methodology for calculating" }, { "docid": "21799350", "title": "", "text": "merchandise, nor has Congress instructed Commerce to simultaneously weigh the statutory factors. Indeed, Commerce has expressly rejected such an approach as \"unfeasible.” Policy Bulletin 04.1 at 5 n.2 (declining to assign a \"composite grade” on the basis of each country’s fulfillment of the economic comparability and significant production of comparable merchandise criteria, which is then combined with \"an assessment or grading of factors data quality and completeness”); see also Fresh Garlic I, 121 F.Supp.3d at 1341. CATC cites no authority for its proposition and its argument is unavailing. . Plaintiffs insert a comparative element framing the issue as whether substantial evidence supports Commerce’s decision to select Thailand over the Philippines. See Jacobi Mem. at 13 (insufficient evidence supported \"Commerce’s conclusion that Thailand was a better surrogate country than the Philippines”) (emphasis added) (capitalization omitted); CATC Mem. at 2 (\"[Commerce] should select the Philippines ....”). Although the court must consider \"evidence that fairly detracts from the substantiality of the evidence,\" Nippon Steel Corp., 337 F.3d at 1379 (internal quotation marks and citation omitted), it may not reweigh the evidence, Downhole Pipe, 776 F.3d at 1377. The issue here, in the first instance, is whether substantial evidence supports Commerce's selection of Thailand as the primary surrogate country irrespective of the degree of evidence supporting the selection of the Philippines. . Citations to the Oral Argument reflect time stamps from the audio recording. . Commerce explains that when “search[ing] for countries within [the centered range] ... it takes into consideration that, in [Dorbest Ltd.], the Federal Circuit stated that, in valuing labor, Commerce could rely on market economy countries that were between half of China’s GNI and between one to two times China’s GNI.” Gov. Resp. at 30 (citing Dorbest Ltd., 604 F.3d at 1372). However, Commerce paradoxically asserts that its \"surrogate country lists do not employ, or endorse, this particular ratio or bright-line,\" before noting that \"the GNIs of the surrogate countries selected for China’s surrogate country list fall within or near this range.” Id. at 30 (emphasis added). The explanation fails to explain. How Commerce “takes into consideration” judicial precedent that" }, { "docid": "10173014", "title": "", "text": "deprived of all or a portion of any lawful duty, tax, or fee thereby, no person, by fraud, gross negligence, or negligence— (A) may enter, introduce, or attempt to enter or introduce any merchandise into the commerce of the. United States by meáns of— (i) any document'or electronically transmitted data or information, written or oral statement, or -act which is material and false, or (ii) any omission which is material, or (B) may aid or abet any other person to violate subparagraph (A). 19 U.S.C. § 1592(a)(1). . \"As a general rule, a violation is negligent if it results from failure to exercise reasonable care and competence ... to ensure that statements made and information provided in connection with the importation of merchandise are complete and accurate.” 19 C.F.R. Pt. 171, App. B(C)(1). . In his motion, Ng criticizes Plaintiffs responses to interrogatories and document production and contends Plaintiff failed to properly amend or supplement its disclosures. Ng’s MSJ at 18-24. Ng contends he sent three letters to Plaintiff, which it ignored, but because of his \"severely impoverished economic position,” he could not afford to file a motion to compel further responses. Ng’s MSJ at 20 n.4. Plaintiff asks the court to strike or disregard Ng’s arguments. Pl.’s XMSJ at 40-43. Plaintiff contends that Ng violated the scheduling order by belatedly raising his discovery argument, which is predicated on the false assertion that Plaintiff ignored his letters. Pl.’s XMSJ at 41-42 (citing Pl.’s Ex 3, ECF No. 62-8 (Plaintiff's responses to Ng's, Sterling's, and Ng Branding’s discovery letters) and Pl.’s Ex. 4, ECF No. 62-9 (email from defense counsel acknowledging receipt of Plaintiff's responses to Sterling's and Ng Branding’s discovery letters)). USCIT Rule 12(f) provides that the court may strike \"an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The court has broad discretion in disposing of motions to strike. Beker Indus. Corp. v. United States, 7 CIT 199, 200, 585 F.Supp. 663, 665 (1984). Nevertheless, \"motions to strike are not favored by the courts and are infrequently granted.” Jimlar Corp. v. United States, 10 CIT 671, 673," }, { "docid": "20819658", "title": "", "text": "the calculation of the overhead ratio by removing traded goods from the denominator. Rhodia 1, 25 CIT at _, 185 F. Supp. 2d at 1357. Citations to the administrative record include references to public documents from the original inquiry (“PR. Doc.”); proprietary documents from the original inquiry (“C.R. Doc.”); public documents from the remand inquiry (“R.ER. Doc.”) and proprietary documents from the remand inquiry (“R.C.R. Doc.”). Bulk aspirin is produced by combining two main ingredients, salicylic acid and acetic anhydride, which react to form acetylsalicylic acid or aspirin. Rhodia filed both a response to the Department’s Remand Determination and Jilin’s remand comments, as well as, a motion for leave to file a reply brief with a proposed reply brief attached. Jilin opposes these later filings. According to Jilin, this court’s remand order “limited the opportunity to file response comments to the Department, and did not specifically provide parties with the opportunity to file comments in response to other parties’ remand comments.” Jilin’s Opp’n to Rhodia’s July 15,2002 Mot. for Leave to File a Reply Br. and Mot. to Strike Rhodia’s May 28, 2002 Comments in Opp’n to Jilin’s Remand Comments at 2. The original opinion “granted [the parties] 30 days to file comments on the remand determination. The Department may respond to any comments filed within 20 days.” Rhodia I, 25 CIT at _, 185 F. Supp. 2d at 1358. “Motions to strike are extraordinary measures,” Acciai Speciali Terni SPA v. United States, 24 CIT _, _, 120 F. Supp. 2d 1101, 1106 (2000), \"not favored by the courts and infrequently granted.” Jimlar Corp. v. United States, 10 CIT 671, 673, 647 F. Supp. 932, 934 (1986). Such motions are only granted when there is a \"flagrant disregard of the rules of the court,” as when “the brief demonstrates a lack of good faith, or * * * the court would be prejudiced or misled by the inclusion in the brief of the improper material.” Id. Here, Rhodia interpreted the remand order as allowing all parties to respond. Rhodia, however, also “respectfully requested] leave to file its Opposition to Remand" }, { "docid": "21799273", "title": "", "text": "(2015) (recognizing that beginning its analysis with economically comparable countries, in normal cases, better enables Commerce to calculate normal value in a hypothetical market economy country; however, economic comparability should not be a first step when the subject merchandise is unusual or unique, is produced in only a few countries, or the major inputs are not widely traded); Jiaxing Bro. Fastener Co., Ltd. v. United States, 39 CIT -, -, 961 F.Supp.2d 1323, 1331 (2014) (“India though cannot be a suitable primary surrogate country on this administrative record because it is not economically comparable to the PRC.”); Foshan Shunde Yongjian Housewares & Hardwares Co. v. United States, 37 CIT -, -, 896 F.Supp.2d 1313, 1321-22 (2013) (affirming Commerce’s decision to exclude India from its surrogate country list when it had the lowest GNI relative to China as compared to other countries under consideration); Clearon Corp. v. United States (“Clearon I”), 38 CIT -, -, 2014 WL 3643332 at *11-*12, *15 (2014) (rejecting argument that Commerce wrongfully applied per capita GNI as a threshold consideration in rejecting India as a potential surrogate country; remanding for further explanation of how Commerce determined the range of GNIs reflected on OP’s list of potential surrogate countries). In asserting that Commerce should have weighed the Philippines’ fulfillment of all three statutory criteria, Jacobi and CATC would misapply several opinions from this court addressing Commerce’s selection of a surrogate country from among two countries on OP’s list. For example, Jacobi relies on the following passage from Ad Hoc Shrimp: Because none of Commerce’s three surrogate country eligibility criteria is preeminent, it follows that relative strengths and weaknesses among potential surrogates must be weighed by evaluating the extent to which the potential surrogates satisfy each of the three criteria. Jacobi Mem. at 12 (citing Ad Hoc Shrimp, 882 F.Supp.2d at 1371, 1374-75) (emphasis omitted); see also CATC Mem. at 4. However, Ad Hoc Shrimp addresses Commerce’s policy of treating all countries on OP’s list as equally economically comparable. 882 F.Supp.2d at 1374. The passage Jacobi relies on reflects the court’s finding that Commerce may not ignore relative" }, { "docid": "4971210", "title": "", "text": "OPINION and ORDER Eaton, Judge: The United States Department of Commerce’s (“Commerce” or the “Department”) second results of redetermination pursuant to the court’s remand order in Beijing Tianhai Industry Co. v. United States, 39 CIT -, 106 F.Supp.3d 1342 (2015) (“BTIC II”) and the parties’ comments are before the court. See Final Results of Redetermination Pursuant to Court Remand (Dep’t Commerce Feb. 8, 2016) (“Second Remand Results”); see also Pl.’s Cmts. Second Remand Results, ECF No. 108; Def.’s Resp. PL’s Cmts. Second Remand Results, ECF No. 112; Def.-Int.’s Resp. PL’s Cmts. Second Remand Results, ECF No. 113. Also before the court is the Rule 54(b) motion of plaintiff Beijing Tianhai Industry Co. (“plaintiff’ or “BTIC”), seeking to revise the court’s interlocutory decision in Beijing Tianhai Industry Co. v. United States, 38 CIT -, 7 F.Supp.3d 1318 (2014) (“BTIC I”) in light of the United States Court of Appeals for the Federal Circuit’s decision in Mid Continent Nail Corp. v. United States, 846 F.3d 1364 (Fed. Cir. 2017). See Pl.’s R. 54(b) Mot. Revise J., ECF No. 121 (“PL’s R. 54(b) Mot.”). Defendant the United States (“defendant” or “Government”), on behalf of Commerce, and defendant-intervenor Norris Cylinder Company (“defendant-interve-nor” or “Norris”) oppose the motion. See Def.’s Resp. Pl.’s R. 54(b) Mot., ECF No. 122 (“Def.’s R. 54(b) Resp.”); Def.-Int.’s Resp. Pl.’s R. 54(b) Mot., ECF No. 123 (“Def.-Int.’s R. 54(b) Resp.”). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012) and 19 U.S.C. § 1516a(a)(2)(B)(i) (2012). For the reasons that follow, the court grants plaintiffs Rule 54(b) motion and remands this matter to Commerce. BACKGROUND The pertinent background facts are set forth in the court’s opinions in BTIC I and BTIC II, and are supplemented here. In May 2012, Commerce made its final affirmative less-than-fair-value determination on imports of high pressure steel cylinders from the People’s Republic of China (“PRC”). See High Pressure Steel Cylinders From the PRC, 77 Fed. Reg. 26,739 (Dep’t Commerce May 7, 2012) (final determination), and accompanying Issues and Decision Memorandum (“Issues & Dec. Mem.”) (collectively, “Final Determination”). Commerce found that BTIC had engaged in" }, { "docid": "9796561", "title": "", "text": "of the 1976 TRB Finding and the 1987 TRB Order because they were “historically similar,” they contained “essentially the same subject merchandise,” and the “principal disparity between the reviews [was] the schedule.” Id. (citing Memorandum from Joseph A. Spetrini on Scheduling of Concurrent Reviews of Tapered Roller Bearings (TRBs) Under Four Inches (A-588-054) and Over Four Inches (A-588-604.), From Japan to Eric I. Garfinkel 1 (“1991 Spetrini Memorandum ”) (Jul. 18, 1991), Pls.’ App., Ex. 5). Commerce requests that the Court strike the 1991 Spetrini Memorandum because it is not part of the administrative record. Def.’s Opp’n to Mot. J. Agency R. at 17 n.7. Koyo counters that it does not seek to supplement the administrative record but, rather, cites to the memorandum for the limited purpose of rebutting Commerce’s argument that the proceedings under the 1976 TRB Finding are irrelevant to the proceedings under the 1987 TRB Order. , Koyo’s Reply Mem. Supp. Mot. J. Agency R. at 12 n.3. Commerce’s motion to strike the 1991 Spetrini Memorandum is denied. A motion to strike under USCIT Rule 12(f) “constitutes an extraordinary remedy, and should be granted only in eases where there has been a flagrant disregard of the Rules of this Court.” Fujitsu General, Ltd. v. United States, 15 CIT 432, 433, 1991 WL 164482 (1991) (citation omitted). Legal arguments and facts presented by the parties must be supported by information in the administrative record. See Calabrian Corp. v. U.S. Int’l Trade Comm’n, 15 CIT 287, 288, 1991 WL 117824 (1991). However, while documentary items not presented to or obtained by Commerce are outside the administrative record, a party “is free to offer whatever legal arguments it chooses.” Sachs Auto. Prods. Co. v. United States, 17 CIT 740, 741, 1993 WL 276730 (1993). The 1991 Spetrini Memorandum is an internal Commerce memorandum regarding the scheduling of concurrent reviews for tapered roller bearings under and over four inches in the interest of administrative efficiency. Koyo cited to the memorandum to support its legal argument rebutting Commerce’s 1995 Koyo Scope Ruling position, as stated in the administrative record. Consequently, Koyo is" }, { "docid": "20819659", "title": "", "text": "and Mot. to Strike Rhodia’s May 28, 2002 Comments in Opp’n to Jilin’s Remand Comments at 2. The original opinion “granted [the parties] 30 days to file comments on the remand determination. The Department may respond to any comments filed within 20 days.” Rhodia I, 25 CIT at _, 185 F. Supp. 2d at 1358. “Motions to strike are extraordinary measures,” Acciai Speciali Terni SPA v. United States, 24 CIT _, _, 120 F. Supp. 2d 1101, 1106 (2000), \"not favored by the courts and infrequently granted.” Jimlar Corp. v. United States, 10 CIT 671, 673, 647 F. Supp. 932, 934 (1986). Such motions are only granted when there is a \"flagrant disregard of the rules of the court,” as when “the brief demonstrates a lack of good faith, or * * * the court would be prejudiced or misled by the inclusion in the brief of the improper material.” Id. Here, Rhodia interpreted the remand order as allowing all parties to respond. Rhodia, however, also “respectfully requested] leave to file its Opposition to Remand Comments of Jilin * * Because Rhodia’s opposition was filed within the time limits of the remand order and addresses issues raised by Jilin yet not previously addressed by Rhodia, we deny Jilin’s motion to strike. Furthermore, Jilin did not even file its motion to strike until 49 days after Rhodia’s Opposition was filed. We also accept Rhodia’s Motion for Leave to File Reply Brief as “it is in the interest of the court to hear all the parties’ arguments expressed as thoroughly and clearly as possible.” Borden, Inc. v. United States, 22 CIT 233, 248 n.11, 4 F. Supp. 2d 1221, 1235 n.11 (1998). In this investigation, Commerce used the term “input producer” to refer to a company that only produces aspirin inputs, such as salicylic acid (made from phenol and carbon dioxide) or acetic anhydride (made from acetic acid and other materials);a “fully integrated producer” produces salicylic acid, acetic anydride and the final aspirin product, bulk acetylsalicylic acid. Jilin also argues that Commerce’s “practice of excluding zero profit companies was developed almost entirely" }, { "docid": "21799269", "title": "", "text": "the agency to address the issue in the first instance, in its final results, prior to being considered by the courts and the Court of Appeals for the Federal Circuit (“Federal Circuit”) has confirmed the reasonableness of this approach. See Qingdao Sear-Line Trading Co. Ltd. v. United States, 766 F.3d 1378, 1388 (Fed. Cir. 2014) (“Commerce regulations require presentation of all issues and arguments in a party’s administrative case brief’); Dorbest Ltd. 604 F.3d at 1375 (insufficient for party to have raised an issue in a footnote in the rebuttal brief or during the ministerial comment period when the issue was not raised in the party’s case brief). Issues not raised before the agency in case and rebuttal briefs are waived for failure to exhaust and cannot be raised on appeal before this court. 28 U.S.C. § 2637(d). There are exceptions to the requirement of exhaustion, which may be applied at the court’s discretion. 2. Plaintiffs Adequately Exhausted Their Remedies A careful review of the case briefs filed in the underlying administrative proceeding show that Plaintiffs sufficiently raised Commerce’s sequential approach to surrogate country selection. See Trust Chem Co. Ltd. v. United States, 35 CIT -. -, 791 F.Supp.2d 1257, 1268 & n.27 (2011) (“The determinative question [regarding administrative exhaustion] is whether Commerce was put on notice of the issue .... ”). CATC squarely raised the issue in its case brief, asserting that: As demonstrated by [Commerce’s] Preliminary Results, [Commerce] has treated the economic comparability criteria of its surrogate country analysis as a threshold. [Commerce] did not consider the relative quality of data in countries outside of the [per capita] GNI band nor did [Commerce] consider the relative significant production of countries outside of the GNI band. After determining the Philippines and Indonesia were not at the same level of economic comparability, [Commerce] stopped its analysis of these countries. This approach cannot be reconciled with the relevant statutory mandate. CATC Case Br. (June 22, 2015) at 6, PJA Tab 33, PR 375, ECF No. 85-4 (emphasis added). Likewise, DJAC asserted that Commerce must “weigh the economic comparability, significant production and" } ]

[ { "docid": "14170011", "title": "", "text": "required to acquiesce in the form chosen by taxpayers for doing business and, if the form is unreal and sham, the fiction may be disregarded for purposes of the tax statutes. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1934), Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406 (1939). The incidence of taxation depends on the substance of the transaction, Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1944), and, as pointed out by Judge Learned Hand in National Investors Corp. v. Hoey, 144 F.2d 466, 468 (2d Cir., 1944): “[T]o be a separate jural person for purposes of taxation, a corporation must engage in some industrial, commercial, or other activity besides avoiding taxation: in other words, * * the term ‘corporation’ will be interpeted to mean a corporation which does some ■‘business’ in the ordinary meaning; * * escaping taxation is not ‘business’ in the ■ordinary meaning.” To be afforded recognition for tax purposes a taxpayer “must be a viable business entity, that is, it must have been formed for a substantial business purpose or actually engage in substantive business activity.” Aldon Homes, Inc., 33 T.C. 582, 597 (1959). It is well settled that the dominant purpose of the revenue laws is the taxation of income to those who earn •or otherwise create the right to receive it .and enjoy the benefit of it when paid. Helvering v. Horst, 311 U.S. 112, 119, 61 S.Ct. 144, 148, 85 L.Ed. 75 (1940). See .also, Haberman Farms v. United States, 305 F.2d 787 (8th Cir., 1962); Jackson v. C. I. R., 233 F.2d 289 (2d Cir., 1956). Petitioner states in its briefs that it is not concerned with whether the multiple corporations were unreal or shams and that it neither attempts to support nor to attack the Tax Court’s finding that they were shams. Conceding that income may be taxed to the one who earns the income, petitioner limits itself to the argument — “the sum .and substance of the case now before the ■court” — that" } ]

[ { "docid": "2052617", "title": "", "text": "\"business purpose” is often absent in donative dispositions of property through the device of the family trust. Cf. Alden B. Oakes, 44 T.C. 524, 532 (1965). Accordingly, a litmus test of \"business purpose” on the part of the grantor will not suffice, and nothing in the legislative history of section 641(b), reviewed above, leads us to believe that tax-motivated trusts necessarily lie outside its plain meaning. Similarly, the continuing individual economic and legal viability of the Morris Trusts preclude the application of the \"economic reality” test. Cf. Irvine K. Furman, 45 T.C. 360, 366 (1966), affirmed per curiam 381 F.2d 22 (C.A. 5,1967). After careful consideration, we are constrained to reach the conclusion that a finding of tax avoidance is simply not enough to invalidate multiple trusts. * * * [51 T.C. at 42-44; fn. refs, omitted.] Fourth, we found support for our conclusion in \"the fact that the Supreme Court, in a case decided less than 3 years after Gregory v. Helvering, supra, held that amendments to a trust instrument were effective to create three separate taxable entities despite an express finding by the Board of Tax Appeals that the purpose of the amendments was 'to reduce liability for income taxes on the income of the trust.’” 51 T.C. at 45, citing U.S. Trust Co. v. Commissioner, 296 U.S. 481, 485 (1936). Based on these four factors we concluded that trusts, like corporations and family partnerships, are not invalidated solely because the creator’s principal aim was tax reduction. 51 T.C. at 44. Accordingly, we held that the 20 Morris Trusts would not be consolidated but would be respected as independent taxpaying entities. The Circuit Court of Appeals in affirming our decision stated: \"We adopt the views of the majority of the Tax Court and for the reasons stated in that opinion we affirm the judgments from which these consolidated appeals are taken.” 427 F.2d at 1362. Tax Reform Act of 1969 Congress reconsidered the method of taxing trusts and beneficiaries in the Tax Reform Act of 1969, Pub. L. 91-172, 83 Stat. 487 (hereafter referred to as the 1969" }, { "docid": "17037476", "title": "", "text": "pass legislation that would close the tax loophole; and that since such legislation has not been enacted, the loophole remains and plaintiff legally has taken advantage of it. The Government argues that form must always yield to substance in tax matters, so that if a taxpayer actually has not done what he purported to do, he will be taxed on what he actually did, or if he had no legitimate business purpose and only had tax avoidance in mind, he will be taxed regardless of the form employed to avoid the taxes. It further argues that, since the admitted purpose of creating ninety separate trusts was to avoid the fairly heavy taxes which otherwise would have been incurred, the “business purpose” doctrine should be called into application, the form of these transactions ignored, and the multiple trusts treated as one taxable entity. As a corollary argument, it urges that the obvious intent of the statute — to tax in some way the whole income of trust estates — would be violated if the taxpayer is permitted to avoid payment of these taxes. Plaintiff counters by arguing that the “business purpose” rule has never been applied to trusts because a business purpose is entirely foreign to the vast majority of family trusts, which usually are mere gratuities with no business purpose. She further argues that multiple trusts have been in existence for many years, resulting in large losses of tax revenues, about which Congress has done nothing; and that if the “business purpose” doctrine properly was applicable here, it would have been urged and so applied prior to this litigation. Turning now to the authorities cited by the parties, and considering first those relied on by plaintiff, it has been held that even though the sole purpose of creating separate trusts was to achieve a reduction in the tax upon the income of trust property, this would not transgress any right of the Government. Commissioner of Internal Revenue v. Me-Ilvaine, 7 Cir., 1935, 78 F.2d 787, 102 A.L.R. 252, affirmed 296 U.S. 488, 56 S.Ct. 332, 80 L.Ed. 345; United States" }, { "docid": "2052606", "title": "", "text": "trust filed a separate return for the years in issue. They reported the following amounts of taxable income and tax liability: Trust Taxable Tax Year income liability Stephenson Simple Trust . 1974 $25,349.04 $8,704.52 Stephenson Accumulation Trust 1974 4,134.03 719.49 Stephenson Simple Trust . 1975 15,529.69 4,146.58 Stephenson Accumulation Trust 1975 9,060.39 1,926.91 LeBlond Simple Trust . 1975 15,619.49 4,181.60 LeBlond Accumulation Trust .. 1975 20,588.12 6,352.30 Respondent determined under thé consolidation regulation that the separate identity of the accumulation trusts should be disregarded. Accordingly, respondent consolidated the trusts and increased the taxable income and tax liability of the simple trusts as follows: Trust Year Increase in taxable income Increase in tax liability Stephenson Simple Trust . 1974 $4,534.03 .$2,383.51 1975 9,460.39 4,378.46 LeBlond Simple Trust . 1975 20,988.12 10,562.58 Analysis The Treasury Department promulgated the regulation, under which respondent seeks to consolidate petitioners’ trusts, in 1972. T.D. 7204, 1972-2 C.B. 352, 393. The consolidation regulation states: (c) Multiple trusts. Multiple trusts that have— (1) No substantially independent purposes (such as independent disposi-tive purposes), (2) The same grantor and substantially the same beneficiary, and (3) The ■ avoidance or mitigation of (a) the progressive rates of tax (including mitigation as a result of deferral of tax) or (b) the minimum tax for tax preferences imposed by section 56 as their principal purpose, shall be consolidated and treated as one trust for the purposes of subchapter J. [Sec. 1.641(a)-0(c), Income Tax Regs.] Petitioners contend that the consolidation regulation is invalid. Petitioners argue that Estelle Morris Trusts v. Commissioner, 51 T.C. 20 (1968) (Court reviewed), affd. per curiam 427 F.2d 1361 (9th Cir. 1970), governs these cases because it held that tax-avoidance motive is irrelevant in determining whether multiple trusts will be recognized for tax purposes. Respondent maintains that the regulation is valid and that he properly consolidated the multiple trusts in these cases under its authority. Alternatively, if the regulation is held to be invalid, then respondent argues that Morris Trusts is distinguishable from these cases and that we should examine tax-avoidance motive in deciding whether to recognize the multiple trusts" }, { "docid": "23538081", "title": "", "text": "excess of par, thereby yielding an effective rate of interest well below 1%%, even though it would be unlikely that investors would purchase them for such a small return when they were to mature at par in the near future. For all of the above reasons the Tax Court was justified in concluding that petitioner entered into the Jersey City Bank and Royal State Bank transactions without any 'realistic expectation of economic profit and “solely” in order to secure a large interest deduction in 1958 which could be deducted from her sweepstakes winnings in that year. This conclusion points the way to affirmance in the present case. We hold, for reasons set forth hereinafter, that Section 163(a) of the 1954 Internal Revenue Code does not permit a deduction for interest paid or accrued in loan arrangements, like those now before us, that can not with reason be said to have purpose, substance, or utility apart from their anticipated tax consequences. See Knetsch v. United States, 364 U.S. 361, 366, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960); Diggs v. Commissioner of Internal Revenue, 281 F.2d 326 (2 Cir.), cert. denied, 364 U.S. 908, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960); Weller v. Commissioner, 270 F.2d 294, 297 (3 Cir. 1959), cert. denied, 364 U.S. 908, 81 S.Ct. 269, 5 L.Ed.2d 223, (1960). Al though it is by no means certain that Congress constitutionally could tax gross income, see Surrey & Warren, Federal Income Taxation 228-29 (1960 ed.), it is frequently stated that deductions from “gross income” are a matter of “legislative grace.” E. g., Deputy v. DuPont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416 (1940). There is at least this much truth in this oft-repeated maxim: a close question whether a particular Code provision authorizes the deduction of a certain item is best resolved by reference to the underlying Congressional purpose of the deduction provision in question. Admittedly, the underlying purpose of Section 163(a) permitting the deduction of “all interest paid or accrued within the taxable year on indebtedness” is difficult to articulate because this provision is extremely" }, { "docid": "7815282", "title": "", "text": "are invalid, relying upon Commissioner v. Clark, 202 F. 2d 94 (C.A. 7, 1953), affirming 17 T.C. 1357 (1952), in which the circuit court held the provisions of section 29.22(c)-21, Regs. Ill, which are substantially the same as the provisions of section 39.22 (a)-21(c), Regs. 118, to be invalid as applied to a trust created prior to the adoption thereof. The instant case is distinguishable from Commissioner v. Clark, sufra, in that the regulation here involved was in existence at the time of the creation of the joint trust. Furthermore, under the criteria considered to be proper of application in Commissioner v. Clark, supra, and Helvering v. Clifford, 309 U.S. 331 (1940), and the facts as set forth in our findings, we consider the income of this trust for the period July 30,1954, to December 1,1954, to be taxable to petitioners. Decision will be entered under Bule 50. Respondent has not specifically abandoned any other reason in support of his position that the partnership income reported by the trusts is taxable to petitioners, under the provisions of section 191 of the Internal Revenue Code of 1939 and section 704(e) of the Internal Revenue Code of 1954 partnership interests purportedly transferred to trusts for the benefit of family members, particularly minor children of the transferees, by trust documents valid and irrevocable on their face, are not considered for Federal tax purposes to constitute the alleged trusts as partners if the transaction is a sham lacking in substance. Roy C. Acuff, 35 T.C. 162 (1960), affirmed per curiam 296 F. 2d 725 (C.A. 6, 1961). The evidence here shows that the transactions were not shams, that the independent trustees controlled the trust corpus, and that petitioners recognized the trusts as partners and gave public notice of such recognition by the filing of a Certificate of Business Fictitious Firm Name listing the trusts as partners. Respondent in his brief comments that there was no conveyance of the trust property of the two individual trusts to the trustee and that “Exhibit A” attached to the trust agreement did not designate the property transferred to" }, { "docid": "12040669", "title": "", "text": "undistributed income of the trusts was taxable to the trusts under Section 161(a) (4) of the Internal Revenue Code, 26 U.S.C.A. § 161(a) (4), and could not properly be taxed as income of the individual beneficiaries. The effect of petitioners’ argument is that since the terms of the trusts place them within the “plain language” of the statute, no inquiry should be made into the substance of them. However, it is also contended that the facts disclosed by the evidence do not support the conclusion that the beneficiaries had actual control over the distribution of the income of the trusts. It is well established, of course, that where income is subject to one’s unfettered command and he is free to enjoy it at his own option, he may be taxed on such income whether he elects to enjoy it or not. Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916. This principle is not limited to the grantor of a trust, but is equally applicable to the beneficiary of a trust. Bunting v. Commissioner of Internal Revenue, 6 Cir., 164 F.2d 443; Grant v. Commissioner of Internal Revenue, 5 Cir., 174 F.2d 891. The incidence of taxation may not be avoided by mere “legal paraphernalia which inventive genius may construct”, Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 556, 84 L.Ed. 788, but the Court must look to the “whole nexus of relations between the settlor, the trustee and the beneficiary”, Helvering v. Elias, 2 Cir., 122 F.2d 171, 172, and if it concludes that in spite of the form resorted to in effecting a transaction, the results thereof give the beneficiary command over the distribution of the income of a trust, such income is taxable to the beneficiary. Petitioners rely on Plimpton v. Commissioner of Internal Revenue, 1 Cir., 135 F.2d 482, to support their contention that the form and not the substance of a trust is determinative of the incidence of taxation and that no judicial inquiry into the conduct of the parties or the actual operation of the trust should be made. Respondent" }, { "docid": "1197993", "title": "", "text": "the protection and conservation of the trust property. When the trust property is sold, the trust terminates. There is thus no ongoing business, and there is thus clearly no “business” then separate and apart from the “protection and conservation” of the trust property, and, indeed, no resulting “business” to reorganize pursuant to the purposes of Chapter 11. The issue of whether or not an entity is, for tax purposes, a “business trust” and thus taxable as a “corporation” or a “partnership” and thus not taxable as a corporation has been addressed in many cases. See, e. g., Morrissey v. Commissioner of Internal Revenue, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263 (1935). The various factors in a business entity which determine whether or not it is a “corporation” or a “partnership” for tax purposes are relevant here. Indeed, by filing a tax return as a trust and not as a corporation or association the debtor endorses the proposition of a “trust.” The beneficiaries of the instant trust have for tax purposes urged that they are a “trust” and that therefore their interest and the entity can be taxed as a “partnership.” Their desire was to avoid “double taxation” and to avoid a “corporate” income tax. The personal tax return of the beneficiaries indicate substantial benefits accruing to them in the form of interest deductions which were “passed through” to them. Were the entity a “corporation” this “pass through” would not be possible. In contrast to the normal powers granted to a “corporation” in the Florida Statutes (Florida Statute 607.011 General Powers) the Trust Agreement gives the Trustee few powers without the written consent of 63% of the beneficiaries. For example, the trustee has (1) no power to sue and be sued or to complain and defend in the name of the trust all actions or proceedings, (2) no power to purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use, and otherwise deal in and with real or personal property, (3) no power to sell, convey, mortgage, pledge, create a security interest in, lease, exchange, transfer and otherwise" }, { "docid": "17037481", "title": "", "text": "to deduct expenses of one trust from income from the other. The Board refused to allow this, pointing out that petitioner did not dispute that two separate trusts were created by the will, and a codicil to it, made by her deceased husband. It should be noted that there were only two — not ninety — trusts in question, and that there was no apparent motive of tax avoidance in their creation. Moreover, petitioner’s sole motive in attempting to group them together was to avoid taxes. In Fred W. Smith et al. v. Commissioner, 25 T.C. 143, there was a similar situation, where Grace Smith was a sole beneficiary of one trust and a joint beneficiary of another. She attempted to offset a loss by one trust against income from the other. The Tax Court, following Gertrude Thompson, and for the same reasons, disallowed this action. In brief, plaintiff quotes extensively from Vol. 4, Prentice-Hall, PP 32057, Federal Taxes, and from Ervin, Multiple Accumulative Trusts and Related Problems under the Income Tax, 29 So.Calif. L.Rev., to the effect that there are no tax or local law limitations on the number of accumulative trusts an individual can create for a single beneficiary; that this is a tax loophole which validly may be used. For its part, as noted above, the Government relies upon the basic rule in tax matters that form must yield to substance; that it is not what the parties purported to have done, but what they actually did, which is determinative of tax liability. In weighing the facts, and applying the law to them, it is said, the Courts must not proceed mechanically, but must bear ever in mind the manifest purpose of the tax laws to tax income. In support of these propositions, it cites the following authorities. Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 267, 79 L.Ed. 596, involved a purported corporate “reorganization,” wherein certain shares of stock were transferred from petitioner’s wholly-owned corporation to a new corporation and thence to petitioner who immediately sold the shares, the new corpora tion then being" }, { "docid": "2052613", "title": "", "text": "because the trust instruments did not effectively create 20 separate trusts. Alternatively, the respondent maintained that the multiple trusts should be consolidated under the principle that substance should triumph over form because the grantors created 20 trusts instead of two trusts principally for tax-avoidance purposes. Respondent relied on cases such as Gregory v. Helvering, 293 U.S. 465 (1935), and Knetsch v. United States, 364 U.S. 361 (1960), to support his second argument. The trust instruments in the Morris Trusts case created 20 separate trusts. We found as a fact that each grantor and trustee was careful to \"dot his i’s and cross his t’s” in respecting the form of 20 separate trusts. 51 T.C. at 45. We held as a mátter of law that \"a finding of tax-avoidance is simply not enough to invalidate multiple trusts.” 51 T.C. at 44. Therefore, we concluded that the separate identity of each of the Morris Trusts would be respected for tax purposes. Because the Morris Trusts case is central to deciding the cases currently before us, we will carefully review the basis of our holding in that case. First, we noted that Congress sanctioned income splitting between the beneficiary and a single trust simply by recognizing trusts for tax purposes, generally. We concluded that, in dealing with 20 trústs, we were \"concerned here only with a quantitative extension of the advantages of a single trust, a difference in degree; and not with a qualitatively distinct phenomenon, that is a difference in kind.” 51 T.C. at 39. Second, we noted that Congress had not enacted a provision making tax-avoidance motive the touchstone of tax liability in the trust area, although it had done so in other areas such as sections 269, 306, 482, 532 and 1551. \"To the contrary,” we stated, \"since the Revenue Act of 1916, which provided for the first time that trusts would be treated as separate taxable entities, the tax laws have recognized implicitly that trusts may be used as income-splitting devices.” 51 T.C. at 39 (fn. ref. omitted). Third, we determined that motive in establishing and maintaining multiple trusts" }, { "docid": "12040670", "title": "", "text": "v. Commissioner of Internal Revenue, 6 Cir., 164 F.2d 443; Grant v. Commissioner of Internal Revenue, 5 Cir., 174 F.2d 891. The incidence of taxation may not be avoided by mere “legal paraphernalia which inventive genius may construct”, Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 556, 84 L.Ed. 788, but the Court must look to the “whole nexus of relations between the settlor, the trustee and the beneficiary”, Helvering v. Elias, 2 Cir., 122 F.2d 171, 172, and if it concludes that in spite of the form resorted to in effecting a transaction, the results thereof give the beneficiary command over the distribution of the income of a trust, such income is taxable to the beneficiary. Petitioners rely on Plimpton v. Commissioner of Internal Revenue, 1 Cir., 135 F.2d 482, to support their contention that the form and not the substance of a trust is determinative of the incidence of taxation and that no judicial inquiry into the conduct of the parties or the actual operation of the trust should be made. Respondent seeks to distinguish that ruling. We do not think it should be applied to the facts of this case. The rule expressed in Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 291, 66 S.Ct. 532, 538, 90 L.Ed. 670, “By the simple expedient of drawing up papers, single tax earnings cannot be divided into1 two tax units and surtaxes cannot be thus avoided”, .evidences an intention that the results achieved is the criteria for determining the incidence of taxation rather than the “legal paraphernalia” employed to attain such results. The Tax 'Court was justified in considering the results achieved rather than limiting its consideration to the language of the trust agreements. In support of its conclusion, the Tax Court could properly consider the family relationship of all the parties; the parents’ desire to divest themselves of their interest in the partnerships; the manner of creation and number of the trusts; that the father admittedly wanted his three sons to carry on the business; that the two elder sons did manage it; even if not" }, { "docid": "2052616", "title": "", "text": "clearly indicated in this case.12 * * * [Footnote omitted.]” See also Commissioner v. Brown, 380 U.S. 563, 578-580 (1965). We do not intend to imply that we believe congressional inaction here means complete sanction of tax avoidance through multiple accumulation trusts. Rather, we believe the lesson to be learned is that courts should be wary of broad-scale incorporation of the doctrine of \"tax avoidance,” or \"business purpose,” or \"sham” in an area so fraught with its own particular problems and nuances. At the very least, we are required to limit those judicially developed doctrines to the situations which they were intendéd to cover. Given the foregoing legislative background, we think that the \"business purpose” test of Gregory and the \"economic reality” test of Knetsch, Weller, and Goldstein are inapposite. None of those cases involves a history of detailed consideration by the Congress of the specific problem presented. Indeed, to have allowed the tax benefits sought in those cases would have frustrated the clearly defined legislative purposes of the controlling statutes. Moreover, we know that \"business purpose” is often absent in donative dispositions of property through the device of the family trust. Cf. Alden B. Oakes, 44 T.C. 524, 532 (1965). Accordingly, a litmus test of \"business purpose” on the part of the grantor will not suffice, and nothing in the legislative history of section 641(b), reviewed above, leads us to believe that tax-motivated trusts necessarily lie outside its plain meaning. Similarly, the continuing individual economic and legal viability of the Morris Trusts preclude the application of the \"economic reality” test. Cf. Irvine K. Furman, 45 T.C. 360, 366 (1966), affirmed per curiam 381 F.2d 22 (C.A. 5,1967). After careful consideration, we are constrained to reach the conclusion that a finding of tax avoidance is simply not enough to invalidate multiple trusts. * * * [51 T.C. at 42-44; fn. refs, omitted.] Fourth, we found support for our conclusion in \"the fact that the Supreme Court, in a case decided less than 3 years after Gregory v. Helvering, supra, held that amendments to a trust instrument were effective to create" }, { "docid": "2052612", "title": "", "text": "(3) the final distribution of the trust if such final distribution was made more than 9 years after the last transfer to the trust; (4) a distribution of accumulated income not exceeding $2,000 per year; and (5) certain periodic mandatory distributions under trusts created prior to 1954. Sec. 665(b). These limits and exceptions made it possible in certain circumstances to avoid the original throwback rule. Accordingly, accumulation trusts remained an effective way to split income, and thus to lower taxes. See, e.g., Friedman & Wheeler, \"Effective Use of Multiple Trusts,” 16 N.Y.U. Inst, on Fed. Tax. 967, 981-987 (1958). The 1968 Morris Trusts case in effect legitimatized this planning technique by recognizing each multiple trust as a separate taxpaying entity regardless of tax-avoidance motive. The Morris Trusts Case In Morris Trusts, the grantors created 20 trusts by executing 10 instruments. The trusts bought and sold various interests in real property. The dispositive provisions of each trust were identical except for the period for accumulation and termination. Respondent determined that the 20 trusts should be consolidated because the trust instruments did not effectively create 20 separate trusts. Alternatively, the respondent maintained that the multiple trusts should be consolidated under the principle that substance should triumph over form because the grantors created 20 trusts instead of two trusts principally for tax-avoidance purposes. Respondent relied on cases such as Gregory v. Helvering, 293 U.S. 465 (1935), and Knetsch v. United States, 364 U.S. 361 (1960), to support his second argument. The trust instruments in the Morris Trusts case created 20 separate trusts. We found as a fact that each grantor and trustee was careful to \"dot his i’s and cross his t’s” in respecting the form of 20 separate trusts. 51 T.C. at 45. We held as a mátter of law that \"a finding of tax-avoidance is simply not enough to invalidate multiple trusts.” 51 T.C. at 44. Therefore, we concluded that the separate identity of each of the Morris Trusts would be respected for tax purposes. Because the Morris Trusts case is central to deciding the cases currently before us, we will" }, { "docid": "2052607", "title": "", "text": "The same grantor and substantially the same beneficiary, and (3) The ■ avoidance or mitigation of (a) the progressive rates of tax (including mitigation as a result of deferral of tax) or (b) the minimum tax for tax preferences imposed by section 56 as their principal purpose, shall be consolidated and treated as one trust for the purposes of subchapter J. [Sec. 1.641(a)-0(c), Income Tax Regs.] Petitioners contend that the consolidation regulation is invalid. Petitioners argue that Estelle Morris Trusts v. Commissioner, 51 T.C. 20 (1968) (Court reviewed), affd. per curiam 427 F.2d 1361 (9th Cir. 1970), governs these cases because it held that tax-avoidance motive is irrelevant in determining whether multiple trusts will be recognized for tax purposes. Respondent maintains that the regulation is valid and that he properly consolidated the multiple trusts in these cases under its authority. Alternatively, if the regulation is held to be invalid, then respondent argues that Morris Trusts is distinguishable from these cases and that we should examine tax-avoidance motive in deciding whether to recognize the multiple trusts as independent entities. The Commissioner has broad authority to promulgate all needful regulations. Sec. 7805(a); United States v. Correll, 389 U.S. 299, 306-307 (1967). Treasury regulations \"must be sustained unless unreasonable and plainly inconsistent with the revenue statutes.” Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501 (1948). Regulations, as constructions of the Code by those charged with its administration, \"should not be overruled except for weighty reasons.” Bingler v. Johnson, 394 U.S. 741, 750 (1969); Commissioner v. South Texas Lumber Co., supra at 501. Although regulations are entitled to considerable weight, \"respondent may not usurp the authority of Congress by adding restrictions to a statute which are not there.” Estate of Boeshore v. Commissioner, 78 T.C. 523, 527 (1982). See State of Washington v. Commissioner, 77 T.C. 656 (1981), affd. 692 F.2d 128 (D.C. Cir. 1982). A regulation is not a reasonable statutory interpretation unless it harmonizes with the plain language, origin, and purpose of the statute. United States v. Vogel Fertilizer Co., 455 U.S. 16 (1982); Durbin Paper Stock Co. v. Commissioner," }, { "docid": "17037475", "title": "", "text": "a stipulation of facts entered on July 1, 1960, briefs being filed thereafter. The parties have stipulated that if only one taxable entity — instead of ninety —actually was created by what was done, plaintiff, as trustee, was liable for the taxes and interest assessed against her for- the years 1945-48. They have further stipulated that the sole purpose in attempting to create ninety trusts, instead of one, was to avoid income taxes by dividing the income from the trust properties into ninety parts, so that each part would be exempt from tax liability. Plaintiff contends that ninety separate trusts were intended to be established by the settlor, and that he had the legal right to do so in order to reduce the amount of taxes to be paid on the income from the trust properties. She argues that recent decisions have held that, where separate trusts are created by one settlor for a single beneficiary, they must be taxed as separate entities; that these rulings have been considered by Congress and attempts made to pass legislation that would close the tax loophole; and that since such legislation has not been enacted, the loophole remains and plaintiff legally has taken advantage of it. The Government argues that form must always yield to substance in tax matters, so that if a taxpayer actually has not done what he purported to do, he will be taxed on what he actually did, or if he had no legitimate business purpose and only had tax avoidance in mind, he will be taxed regardless of the form employed to avoid the taxes. It further argues that, since the admitted purpose of creating ninety separate trusts was to avoid the fairly heavy taxes which otherwise would have been incurred, the “business purpose” doctrine should be called into application, the form of these transactions ignored, and the multiple trusts treated as one taxable entity. As a corollary argument, it urges that the obvious intent of the statute — to tax in some way the whole income of trust estates — would be violated if the taxpayer is" }, { "docid": "6328379", "title": "", "text": "with applications of the doctrine that taxation depends upon the substance and not the form of a transaction. See e. g., Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Diggs v. Commissioner of Internal Revenue, 2 Cir., 1960, 281 F.2d 326, 330; cf. National Investors Corp. v. Hoey, 2 Cir., 1944, 144 F.2d 466. See also B. Bittker, J. Eustice, Federal Income Taxation of Corporations and Shareholders § 13.01, at 605 (2d ed., 1966). Yet tax law also recognizes that the motive of tax avoidance will not alone establish tax liability if the transaction does not do so without it. Gregory v. Helvering, supra, 293 U.S. at 469, 55 S.Ct. at 267: “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. * * * But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended.” Where a transaction has economic substance and is economically realistic, it should be recognized for tax purposes. Tax motive alone is not the criterion for determining its legitimacy. Knetsch v. United States, 1960, 364 U.S. 361, 365 & n. 2, 81 S.Ct. 132, 5 L.Ed.2d 128; Gregory v. Helvering, supra, 293 U.S. at 470, 55 S.Ct. 266; Friedlander Corp. v. Commissioner of Internal Revenue, 5 Cir., 1954, 216 F.2d 757; Chisholm v. Commissioner of Internal Revenue, 2 Cir., 1935, 79 F.2d 14. In this case, the district court elevated its “close scrutiny” to the point where it disregarded the actual economic impact of Ajax’s activities. Ajax was not a shell as was the corporation in Gregory, supra. It raised its own funds from .some of New Harris’ stockholders, from some who were not New Harris’ stockholders, and from a bank that had no other connection with the transaction. As we have indicated, Ajax’s activity did have economic substance and notwithstanding" }, { "docid": "22594148", "title": "", "text": "exemption. II. Under United States tax laws,-a trust, like the petitioner trust, is treated as a separate taxable entity, apart from its beneficiaries. §§ 641,7701 (a)(1), (14), Int. Rev.' Code of 1954. And, under appropriate provisions of the Internal Revenue Code, trust income neither distributed nor otherwise taxable directly to the beneficiaries is taxable to the trust entity. See §§ 641-668, Int. Rev. Code of 1954. Under these statutory concepts of taxability, the gains here in question are properly includable in, and taxable as, gross income of the petitioner. Whatevér basis there may be, therefore, for relieving the trust from tax must be found in the words or implications of the Convention. In asserting freedom from liability for United States income tax on its realized and retained capital gains, the petitioner trust relies on Article XIV of the Convention, which provides: “A resident of the- United Kingdom not engaged in trade or business in the United States shall be exempt from United States tax on gains from the sale or exchange of capital assets.” The petitioner itself is. a United States'trust established in this country, governed by the laws of one of our States and administered here by an American trustee. It is plainly not a “resident of the United Kingdom,” the class to which exemption under Article XIV is expressly limited. It argues, however, that the purposes and objectives of the treaty require that we disregard its identity as a separate taxable entity and measure the application of the exemptive provision by the economic impact of the tax which would otherwise be imposed. The petitioner thus says that since the real burden of the tax falls upon its beneficiaries, all of whom are residents of the United Kingdom and objects of the treaty protections, the treaty should be read as exempting the trust from the tax asserted by the United States. Mindful that it is a treaty we are construing, and giving the Convention all .proper effect, we cannot, and do not, either read its language or conceive its purpose as encompassing, much less compelling, so significant a deviation" }, { "docid": "17037492", "title": "", "text": "was any business purpose involved and have treated income from such trusts as taxable to the settlor. Willcuts v. Douglas, 8 Cir., 1934, 73 F.2d 130, affirmed 296 U.S. 1, 56 S.Ct. 59, 80 L.Ed. 3; Kent v. United States, 1945, 60 F.Supp. 203, 103 Ct.Cl. 714. And where family transactions are involved, they are subject to the same close scrutiny by the courts as is the case where tax avoidance is the sole motive of the transaction. Doll v. Commissioner of Internal Revenue, 8 Cir., 1945, 149 F.2d 239, certorari denied 326 U.S. 725, 66 S.Ct. 30, 90 L.Ed. 430; Losh v. Commissioner of Internal Revenue, 10 Cir., 1944, 145 F.2d 456; cf. Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171; Yiannias v. Commissioner of Internal Revenue, 8 Cir., 1950, 180 F.2d 115. Applying the rule of “close scrutiny” here, as we believe we must, we can reach no other conclusion than that this entire scheme is but a mockery of our tax laws. On its very face, the creation of ninety separate trusts for such a relatively small amount of property is preposterous. It flouts the statutory purpose of our laws. Straining reason and credulity, it ought to be struck down forthwith. Even if there is such a large loophole in the law, as plaintiff contends, and which we seriously doubt in these circumstances, it is obvious on the facts that we are confronted with shams, not realities, shadows and not substance. This is so because of the treatment given to the allegedly separate trusts by the parties themselves, mother-trustee and son-beneficiary. All of the trust indentures required the trustee to keep accurate records of each trust separately. The trustee was permitted to invest all of the trust funds, in any amount, provided an accurate record was kept of that portion of the income belonging to each trust. In addition, the trustee had the duty of rendering an annual accounting to the beneficiary as to the status of each trust. Surely, the burden of proving literal compliance with the terms of such a bizarre" }, { "docid": "12958670", "title": "", "text": "repo transactions very similar to those Wexler allegedly engaged in could be deducted under § 163. The court acknowledged that under § 163 deductibility is not expressly contingent upon a profit objective in the underlying transaction. Id. at 760. The court held, however, that interest is nonetheless not deductible when it has resulted from a transaction that lacked economic substance — i.e. had no “ ‘purpose, substance or utility apart from [its] anticipated tax consequences.’ ” Id. at 761 (quoting Goldstein, 364 F.2d at 740). While there is no case in this court that specifically addresses the deductibility under § 163 of interest payments on sham transactions, we have addressed whether economic shams could create deductible interest payments under § 23(b) of the 1939 Internal Revenue Code, the predecessor of § 163. Weller v. Commissioner, 270 F.2d 294 (3rd Cir.1959). The issue in Weller — a case decided a year before Knetsch — was the deducti-bility of prepaid interest on annuity contract loans. We found that “although in form the payments appear to constitute interest within the meaning of section 23(b) of the Internal Revenue Code of 1939, the entire transaction lacks substance.” Id. at 296. We cited Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935), for the general principle that no tax benefit could be created by a transaction entered into for no economic benefit other than tax avoidance. Weller, 270 F.2d at 296-97. Noting that Gregory involved what the Supreme Court termed “an elaborate and devious form of conveyance masquerading as a corporate reorganization,” a camouflage the Court declined to recognize for tax purposes because to do so “would be to exalt artifice above reality.” 293 U.S. at 470, 55 S.Ct. at 268. We said in Weller that “the principle laid down in the Gregory ease is not limited to corporate reorganizations, but rather applies to the federal taxing statutes generally.” Id. at 297. We rejected the petitioners’ argument that the deduction should be allowed because the interest obligation was real: “That there may be an obligation which is binding under local law" }, { "docid": "12820195", "title": "", "text": "that he knew or reasonably should have known that the trusts were not legitimate. This appeal followed. The issue on appeal is whether the tax court erred in finding that the business trusts lacked economic substance and that Chase was negligent in failing,to comply with the pertinent provisions of the tax code. We employ the same standard of review for decisions of the United States Tax Court as for civil actions decided by federal district courts. 26 U.S.C. § 7482(a) (1989). Findings of fact are upheld unless clearly erroneous. Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 1199, 4 L.Ed.2d 1218 (1960). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Chase argues that the tax court erred in finding that his business trusts lacked economic substance because the evidence failed to establish that this business form was a sham. Chase claims that he established the business trusts according to Minnesota law, and that federal tax regulations treat such trusts as associations, which are not subject to self-employment tax. See Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263 (1935). He also contends that the form of the business entity is not to be ignored, unless it is shown that its principal purpose is tax avoidance. See National Investors Corp. v. Hoey, 144 F.2d 466 (2d Cir.1944). Chase concludes that, because his purpose in creating the trusts was to protect his business assets from personal creditors and not tax avoidance, the Commissioner must respect the business form, even though the trustees are only nominal managers. We disagree. The record demonstrates that there was no real change in Chase’s economic relationship to his businesses as a result of the creation of the trusts, and this lack of substance is strong evidence that the trusts were merely a sham to avoid payment of" }, { "docid": "2052608", "title": "", "text": "as independent entities. The Commissioner has broad authority to promulgate all needful regulations. Sec. 7805(a); United States v. Correll, 389 U.S. 299, 306-307 (1967). Treasury regulations \"must be sustained unless unreasonable and plainly inconsistent with the revenue statutes.” Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501 (1948). Regulations, as constructions of the Code by those charged with its administration, \"should not be overruled except for weighty reasons.” Bingler v. Johnson, 394 U.S. 741, 750 (1969); Commissioner v. South Texas Lumber Co., supra at 501. Although regulations are entitled to considerable weight, \"respondent may not usurp the authority of Congress by adding restrictions to a statute which are not there.” Estate of Boeshore v. Commissioner, 78 T.C. 523, 527 (1982). See State of Washington v. Commissioner, 77 T.C. 656 (1981), affd. 692 F.2d 128 (D.C. Cir. 1982). A regulation is not a reasonable statutory interpretation unless it harmonizes with the plain language, origin, and purpose of the statute. United States v. Vogel Fertilizer Co., 455 U.S. 16 (1982); Durbin Paper Stock Co. v. Commissioner, 80 T.C. 252, 257 (1983). Where the statute’s provisions are unambiguous, and its directive specific, the Commissioner has no power to amend it by regulation. Koshland v. Helvering, 298 U.S. 441, 447 (1936); Arrow Fastener Co. v. Commissioner, 76 T.C. 423 (1981). To evaluate the validity of the consolidation regulation it is essential to review the following developments in the law concerning multiple trusts which preceded the regulation’s 1972 promulgation: the use of multiple trusts as permanent income-splitting devices, the 1968 Morris Trusts case which upheld such use of multiple trusts and the 1969 Act which eliminated some, but not all/of the tax benefits associated with multiple trusts. We will review each of these developments in turn. Multiple Trusts as Income-Splitting Devices Generally, trusts are taxed as separate entities under subchapter J of the Internal Revenue Code. Sec. 641(b). However, trusts receive a deduction for amounts distributed or required to be distributed to the beneficiary. Secs. 651, 661. The beneficiary is taxed on amounts received from a trust during a year to the extent of" } ]

[ { "docid": "11148360", "title": "", "text": "III. On appeal, the plaintiffs seek attorneys’ fees from the defendants only in their official capacities. Thus we do not consider whether such an award would be appropriate from the defendants in their individual capacities. Moreover, contrary to some suggestions in the briefs, the eleventh amendment is not a bar to an award of attorneys’ fees under § 1988. See Hutto v. Finney, 437 U.S. 678, 689-700, 98 S.Ct. 2565, 2573-2578, 57 L.Ed.2d 522, (1978). Thus the question presented is whether the doctrine of judicial immunity bars recovery of attorneys’ fees by a prevailing party under § 1988 fi;om judicial officers in their official capacity. We hold that it does not. The doctrine of judicial immunity is a common-law rule, and the Supreme Court has indicated that Congress may abolish the doctrine when it sees fit. See Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967). We believe that Congress has done so in § 1988. The legislative history of § 1988 indicates that Congress expressly considered judicial immunity and decided to abrogate it under § 1988. The House Report states: Furthermore, while damages are theoretically available under the statutes covered by [§ 1988], it should be observed that, in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy.17 Consequently awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected. H.Rep.No.94-1558, 94th Cong., 2nd Sess. 9 (1976). Footnote 17 contains a citation to Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the case where the Supreme Court indicated that Congress could abrogate judicial immunity. See generally Supreme Court of Virginia v. Consumers Union,- U.S.-,---, 100 S.Ct. 1967, 1977-78, 64 L.Ed.2d 641 (1980). We believe that this is sufficient indication that Congress has exercised the choice left to it by Pierson by enacting § 1988. None of the defendants’ arguments convince us to the contrary. First, they point out that because the plaintiffs’ counsel are" } ]

[ { "docid": "3984794", "title": "", "text": "the statute and Rowley, so does the EAH-CA. . As the district court correctly observed, the question whether Section 504 imposes affirmative obligations on the states is logically antecedent to the question of whether such obligations are enforceable by an implied right of action. 516 F.Supp. at 984. If such obligations exist after Pennhurst, there is a private right of action to enforce them in this circuit. Helms v. McDaniel, 657 F.2d 800, 806 n. 10 (5th Cir. 1981) cert. denied 455 U.S. 946, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982); Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir.1980); Tatro I, supra (implicit); see also Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980), vacated as moot, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). . See Tatro v. Texas, No. CA-3-79-1281-G (N.D.Tex. Sept. 8, 1981) (unpublished memo randum opinion) in which after entry of the judgment below, the district court afforded the school board an opportunity to reopen the record to rebut the school superintendent’s concession that the school district received federal assistance for programs from which Amber had been excluded. The record reveals no attempt by the school district to do so. . The district court found that an attorneys’ fees award against the State Board was not barred by the Eleventh Amendment. Tatro v. Texas, No. CA-3-79-1281-G (N.D.Tex. Sept. 8, 1981) (unpublished memorandum opinion). The State Board has not appealed that decision; however it has suggested that its action reversing the decisions of the hearing officer and Commissioner of Education was taken in its judicial capacity and is entitled to immunity on that basis. We need not decide whether judicial immunity might bar attorneys’ fees awards under § 505, see Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), because this court has held that the EAHCA denies to state educational agencies the judicial power to review the decisions of an independent hearing officer. Helms v. McDaniel, 657 F.2d 800, 805-06 & n. 9 (5th Cir.1981), cert. denied 455 U.S. 946, 102 S.Ct. 1443, 71" }, { "docid": "14379302", "title": "", "text": "was not unreasonable. The court further noted that the case was a contingency case, which weighed against any decrease in what the court described as the “modest” amount requested. II. Although judges and prosecutors are absolutely immune from liability for money damages, Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), this court has held, in Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975), rev’d on other grounds sub nom. Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981), that judicial immunity does not extend to injunctive and declaratory relief under 42 U.S.C. § 1983. Accord, Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir. 1979); Harris v. Harvey, 605 F.2d 330, 335 n.7 (7th Cir. 1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980); Kelsey v. Fitzgerald, 574 F.2d 443, 444 (8th Cir. 1978); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978). The question presently before us is whether a judicial official is liable for attorney fees under 42 U.S.C. § 1988 when judicial immunity is not a bar to prospective relief. The Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that in any action under 42 U.S.C. § 1983, the district court, “in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” See Hutto v. Finney, 437 U.S. 678, 694, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522 (1978). In Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 738-39, 100 S.Ct. 1967, 1978, 64 L.Ed.2d 641 (1980), the Supreme Court held that attorney fees may be recovered against an official under 42 U.S.C. § 1988 when prospective relief is properly awarded against the official. The Court found, on the basis of the legislative history of § 1988, that Congress intended for attorney fees to be awarded" }, { "docid": "22434141", "title": "", "text": "645 (1st Cir.1978). Additionally, while we recognize that these defendants are two young police officers, the ability to pay a fee award has been held not to be a special circumstance that would bar an award. Entertainment Concepts, Inc. v. Maciejewski, 631 F.2d 497 (7th Cir.), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1980). We are aware that currently the question of the insurance company’s liability for the damage award is being litigated in the magistrate’s court. We do not express any opinion regarding amount of damages, fees or costs to affect those proceedings. As Chief Judge Cummings recently wrote in Sanchez v. Schwartz, supra, a contingent fee contract should not serve “as an automatic ceiling on the amount of a statutory award.” 688 F.2d at 505. See also Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980). The trial court properly reconsidered the disputed provision of the 1981 fee agreement. It is the function of the courts to seek the proper interpretation of a contract which reflects the intentions of the parties. Stanley v. Chastek, 34 Ill.App.2d 220, 180 N.E.2d 512, 520 (2d Dist.1962); Greene v. Gust, 26 Ill.App.2d 2, 167 N.E.2d 438, 441 (1st Dist. 1970); 4 S. Williston, A Treatise on the Law of Contracts § 601 (3d ed. 1961). It is clear from the contract, the memorandum in support of the Motion to Reconsider and the affidavits attached thereto that it was the intention of Lenard and his attorneys that any award under § 1988 would be credited to any fees owing under the contingent contract. The excess attorney’s fee award, if any, would go to the attorneys. We cannot express or confirm the final amount of the attorney’s fees because the trial court must reexamine the award and limit the fees to the prevailing issue. The defendants contend that the trial court improperly awarded costs under § 1988. They base this contention upon the fact that the court reversed its stand regarding costs after it reconsidered the attorney’s fees issue in January, 1981. Costs are allowable under § 1988. North-cross v." }, { "docid": "7954768", "title": "", "text": "85 L.Ed.2d 480 (1985). A judge or judicial body may have absolute legislative, as distinguished from judicial, immunity for actions which are in line with the legislative process (e.g., actions involving the promulgation of binding rules of conduct). Consumers Union, 446 U.S. at 731-33, 100 S.Ct. at 1974-75. To buttress their defense of legislative immunity defendants rely almost exclusively upon Supreme Court of Virginia v. Consumers Union of the United States, Inc. In Consumers Union, the plaintiffs brought a civil rights action pursuant to 42 U.S.C. § 1983 against the Virginia Supreme Court, the Virginia State Bar, the American Bar Association, and, both in their individual and official capacities, the Chief Justice of the Virginia Supreme Court, the president of the state bar, and the chairman of the state bar’s Legal Ethics Committee. Plaintiffs sought a declaration that the defendants had violated the First and Fourteenth Amendments by promulgating and enforcing the Virginia Code of Professional Responsibility which, inter alia, prohibited attorney advertising. Consumers Union, 446 U.S. at 725-26, 100 S.Ct. at 1971-72. The district court found the advertising ban unconstitutional and permanently enjoined its enforcement, and furthermore awarded attorneys’ fees against the Virginia Supreme Court and its Chief Justice in his official capacity. Id. at 728, 100 S.Ct. at 1973. While upholding the injunctive relief entered against the Virginia Court, the United States Supreme Court vacated the award of attorneys’ fees, holding that the Virginia Supreme Court, in promulgating the disciplinary rule at issue, acted in a legislative capacity such that the court and its members were immune from suit. Id. at 733-34, 100 S.Ct. at 1976. See also Alia v. Michigan Supreme Court, 906 F.2d 1100, 1101-02 (6th Cir.1990) (employing Consumers Union to legislatively immunize state supreme court that had promulgated a mediation rule governing state trial courts). When the holding of Consumers Union is juxtaposed against the ease at bar, it is apparent that the New Jersey Supreme Court’s promulgation of administrative directives constitutes legislative action to which absolute legislative immunity must attach. Just as in Consumers Union, where the Virginia Supreme Court claimed an inherent authority" }, { "docid": "3984795", "title": "", "text": "received federal assistance for programs from which Amber had been excluded. The record reveals no attempt by the school district to do so. . The district court found that an attorneys’ fees award against the State Board was not barred by the Eleventh Amendment. Tatro v. Texas, No. CA-3-79-1281-G (N.D.Tex. Sept. 8, 1981) (unpublished memorandum opinion). The State Board has not appealed that decision; however it has suggested that its action reversing the decisions of the hearing officer and Commissioner of Education was taken in its judicial capacity and is entitled to immunity on that basis. We need not decide whether judicial immunity might bar attorneys’ fees awards under § 505, see Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), because this court has held that the EAHCA denies to state educational agencies the judicial power to review the decisions of an independent hearing officer. Helms v. McDaniel, 657 F.2d 800, 805-06 & n. 9 (5th Cir.1981), cert. denied 455 U.S. 946, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). Lacking judicial capacity, the State Board had no judicial immunity." }, { "docid": "9863587", "title": "", "text": "1976, pp. 5908, 5912. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980). The law in this and other circuits is that plaintiffs may be “prevailing parties” for purposes of § 1988 even though their § 1983 action was dismissed as moot. See, e.g., Grano v. Barry, 733 F.2d 164, 168 n.2 (D.C.Cir.1984); Coalition for Basic Human Needs v. King, 691 F.2d 597 (1st Cir.1982); Doe v. Busbee, 684 F.2d 1375, 1379 (11th Cir.1982); Morrison v. Ayoob, 627 F.2d 669 (3d Cir.1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981); Doe v. Marshall, 622 F.2d 118, 120 (5th Cir.1980), cert. denied, 451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 855 (1981); Williams v. Alioto, 625 F.2d 845 (9th Cir.1980), cert. denied, 450 U.S. 1012, 101 S.Ct. 1723, 68 L.Ed.2d 213 (1981). We find that the catalyst test has also been met. Defendant also challenges the award of attorney’s fees on eleventh amendment grounds. As we construe it, he argues that since Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, holds that eleventh amendment sovereign immunity bars the federal courts from deciding pendent state-law claims against state officials that impact directly on the state, id. at 117, 104 S.Ct. at 917, it must also bar federal courts from awarding fees for work done in pursuing certified state-law claims before a state supreme court. This overlooks Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), reh’g denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979), and Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, cases that reject this eleventh amendment argument. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, held that Congress abrogated the states’ eleventh amendment sovereign immunity when it enacted § 1988, permitting private persons to recover attorney’s fees against a state when they prevail in actions for declaratory or injunctive relief under § 1983. Id. at 693-94, 98 S.Ct. at 2574-75. Hutto built on Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614" }, { "docid": "14123029", "title": "", "text": "to counties and other municipal corporations is sufficiently well established to render application of the Laje criteria unnecessary with regard to such units of local government, absent convincing evidence indicating that the entity in question is indeed atypical, or that the \"state treasury” exception to the general rule may apply. . The defendant judges of the Dallas County Criminal Courts joined with Dallas County in claiming entitlement to Eleventh Amendment immunity. Insofar as they sought to derive such immunity from the County, their claim must plainly fail with that of the County. Monell, 436 U.S. at 690 n. 55, 98 S.Ct. at 2035 n. 55. The judges also contend that they are not \"persons” under § 1983. The Supreme Court’s recent decision in Pulliam v. Allen, — U.S.-, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), settles this question. In Pulliam, an action brought under § 1983, the Court held that judicial immunity bars neither prospective injunctive relief nor the award of attorneys’ fees under § 1988. That state judges are \"persons” for § 1983 purposes is clearly implicit in this holding. Further, our own cases establish that state court judges are not immune from federal suits seeking equitable or declaratory relief. Ciudadanos Uni-dos de San Juan v. Hidalgo County Grand Jury Commissioners, 622 F.2d 807, 813 n. 16 (5th Cir.1980), cert. denied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981) (§ 1983 action against state judges); Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976, 980-81 (5th Cir. 1979) (en banc), aff’d sub nom Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). In any event, the ground of the judges’ appeal is by no means clear. They have been assessed neither with damages nor with attorneys’ fees; no declaratory or injunctive relief has been granted against them. We are thus at a loss as to what the judges are appealing from. . 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). . A fair reading of the Court's discussion of this point, and one consistent with Mt. Healthy and Lake Tahoe," }, { "docid": "14379310", "title": "", "text": "100 S.Ct. at 1976 n.14 (citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)). Although the Supreme Court has never held that judicial immunity is not a bar to prospective relief, it is the law in this circuit. See Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975), rev’d on other grounds sub nom. Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981). . In Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967), the Supreme Court indicated that Congress has the power to abrogate judicial immunity. Footnote 17 of the House Report contains a citation to Pierson v. Ray, which further suggests that Congress intended to allow an award of attorney fees against an official despite immunity from damage liability. See Morrison v. Ayoob, 627 F.2d 669, 672-73 (3d Cir. 1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981). . Because this case was decided before Anderson v. Morris, supra, the district court did not have the benefit of that case. The attorney fee awarded by the district court, however, essentially was determined in the manner prescribed by Anderson v. Morris. Allen’s request for $7,308.00 in attorney fees was based on the actual hours spent calculated at an hourly rate of $60.00. The district court determined that all of the hours submitted were reasonably expended and that an hourly rate of $60.00 was reasonable in light of the fact that the customary hourly rate for such a case was between $50.00 and $100.00." }, { "docid": "980299", "title": "", "text": "Cong., 2nd Sess. 9 (1976). The Third Circuit recently held that this legislative history showed that Congress intended to abrogate judicial immunity in § 1988. Morrison v. Ayoob, 627 F.2d 669 (3d Cir. 1980). We agree, and hold that Congress also intended the abrogation of any immunity possessed by the Village officials. Accord, Supreme Court of Virginia v. Consumers Union of the United States, - U.S. -, -, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980) (Fees Act permits fees award against state agency not immune from injunctive relief). Defendants make some reference to their ability to pay a fee award. First, ability to pay is not a “special circumstance” that will bar an award of attorneys’ fees to a successful plaintiff. Bunn v. Central Realty of Louisiana, 592 F.2d 891 (5th Cir. 1979). Compare Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980) (denial of fees justified where attorney submitted grossly inflated bill for “simple” case). Second, even though the Village is not a named defendant, it may be the appropriate party to pay attorneys’ fees. Hutto v. Finney, 437 U.S. 678, 699-700 & n. 32, 98 S.Ct. 2565, 2578-2579 & n. 32, 57 L.Ed.2d 522 (1978). The legislative history of the provisión indicates that Congress anticipated that the fees would be paid from the funds of the Village: [Defendants in these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys’ fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party). S. Report No. 1011, 94th Cong., 2d Sess. 5, reprinted in [1976] U.S.Code Cong. & Admin.News 5908, 5913. See Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 494-96 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979). Neither party had the opportunity to argue below how an appropriate award could be" }, { "docid": "980298", "title": "", "text": "414-15 (3d Cir. 1979). Compare Muscare v. Quinn, 614 F.2d 577 (7th Cir. 1980) (plaintiff prevailed on only one substantive claim) and Roesel v. Joliet Wrought Washer Co., 596 F.2d 183, 187 (7th Cir. 1979) (each party prevailed on one issue; no fees awarded). Nor are there any special circumstances which justify denial of an award. The defendants claim that an award of attorneys’ fees would be improper here because the individual defendants have qualified immunity from liability. Defendants argue that absent “bad faith” an award against local officials is unjustified. We disagree. Congress specifically addressed official liability for attorneys’ fees in § 1988. The House Report stated Furthermore, while damages are theoretically available under the statutes covered by [§ 1988], it should be observed that, in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy. Consequently, awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected. H.Rep.No. 94-1558, 94th Cong., 2nd Sess. 9 (1976). The Third Circuit recently held that this legislative history showed that Congress intended to abrogate judicial immunity in § 1988. Morrison v. Ayoob, 627 F.2d 669 (3d Cir. 1980). We agree, and hold that Congress also intended the abrogation of any immunity possessed by the Village officials. Accord, Supreme Court of Virginia v. Consumers Union of the United States, - U.S. -, -, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980) (Fees Act permits fees award against state agency not immune from injunctive relief). Defendants make some reference to their ability to pay a fee award. First, ability to pay is not a “special circumstance” that will bar an award of attorneys’ fees to a successful plaintiff. Bunn v. Central Realty of Louisiana, 592 F.2d 891 (5th Cir. 1979). Compare Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980) (denial of fees justified where attorney submitted grossly inflated bill for “simple” case). Second, even though the Village is not a named defendant, it may be the appropriate party to pay" }, { "docid": "15492351", "title": "", "text": "within the Commonwealth of Pennsylvania pertaining to matters of professional ethics. (R25). A. Defendants Are Not Entitled To Eleventh Amendment Immunity. 3. The Eleventh Amendment bars “federal courts from entertaining suits for damages when a state is the real party in interest.” It is “not necessary that the state be named as a party, only that the named party is, in actuality, the alter ego of the state.” Blake v. Kline, 612 F.2d 718, 721 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980). However, “[t]he existence of Eleventh Amendment immunity depends primarily on the nature of the relief sought and the identity of the alleged constitutional tortfeasor.” Barletta v. Golden Nugget Hotel Casino, 601 F.Supp. 1495, 1500 (D.N.J.1985). Only when damages or other “retrospective relief is sought must the court ... determine whether [a] claim against the officials in name is against the state in fact.” Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir.1981). 4. Where a plaintiff has sued only those entities charged with enforcing Canon 7 of the Code of Judicial Conduct, and it is undisputed that defendants did not promulgate the challenged Canon, it is clear that defendants lack Eleventh Amendment immunity. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 736, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980). 5. Although the Eleventh Amendment may bar certain awards of damages paid from the state treasury, see Blake, 612 F.2d at 722, it does not bar awards of attorneys’ fees or expenses incurred in litigation seeking prospective relief. E.g., Hutto v. Finney, 437 U.S. 678, 695, 98 S.Ct. 2565, 2576, 57 L.Ed.2d 522 (1978). B. Defendants’ Abstention Argument Must Fail. 6. Abstention is “the exception and not the rule,” and courts should be “particularly reluctant to abstain in cases involving facial challenges based on the First Amendment.” Houston v. Hill, 482 U.S. 451, 467, 107 S.Ct. 2502, 2513, 96 L.Ed.2d 398 (1987). 7. Unless a statute challenged as over-broad is “obviously susceptible of a limiting construction, ... it is the duty of the federal court to exercise its properly" }, { "docid": "733162", "title": "", "text": "its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” Attorney’s fees should be awarded to a prevailing party unless special circumstances would make such an award unjust. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Defendants do not contend that plaintiffs were not prevailing parties under § 1988. Rather, the defendants contest their liability for and the amount of the attorney’s fees. I. Justness of Award A. Defendants Dorsey and Taylor Defendant Dorsey is the director of the Office of Judicial Support of Delaware County and defendant Taylor is the sheriff of Delaware County. These defendants argue that in entering and executing upon confessed judgments they were merely performing ministerial duties in compliance with the Pennsylvania Rules of Civil Procedure and thus should not be required to pay attorney’s fees. Good faith compliance with state law does not shield an individual from an award of attorney’s fees. In Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), the Supreme Court of Virginia was sued for its role in promulgating, interpreting, and enforcing an allegedly unconstitutional disciplinary rule of the Virginia Code of Professional Responsibility. The United States Supreme Court held that although the Virginia Supreme Court was immune from damages liability for acts performed in its legislative and judicial roles, it was not immune from suit in its enforcement role. Id. at 734-36, 100 S.Ct. at 1975-77. In its analysis of the award of attorney’s fees, the Court stated at 739, 100 S.Ct. at 1978: We are not convinced that it would be unfair to award fees against the State Bar, which by statute is designated as an administrative agency to help enforce the State Bar Code. Fee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or an injunction. Nor would we disagree had" }, { "docid": "7587554", "title": "", "text": "the nature of the suit; compensation for this time is undoubtedly justified. Finally, the time spent preparing the summary judgment motion is properly compensated. Defendants did not file extraneous material in support of their motion but relied on the legal arguments that finally terminated the litigation. The award of attorneys’ fees for this effort was most likely proper. The decision of the district court is Vacated and Remanded for Further Findings. . Plaintiff was represented by counsel in the district court. Different considerations may apply to pro se plaintiffs. See Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1981). . While Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), involves fee awards under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b), the same standards apply to fee awards under 42 U.S.C. § 1988. Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1981). . This court has recognized that the immunity doctrine may have different applications when prosecutors are acting as administrators or investigators rather than as advocates in a judicial proceeding. Hampton v. Hanrahan, 600 F.2d 600, 631-32 (7th Cir.1979), reversed in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). Plaintiff also alleged that Assistant State’s Attorney Graff coerced the complainant’s father into signing the criminal complaint and that, during their investigation, officials in the state's attorney’s office told plaintiffs business contacts of the accusations against him, eventually forcing him from the modeling business. While these allegations concern the investigative rather than judicial phases of criminal proceedings, plaintiff does not charge the named defendants with such conduct, and Assistant State’s Attorney Graff is not a defendant in this action. Therefore, these allegations do not alter our conclusion that this case is frivolous. . We stated in Daniels: \"Because defendant was attempting to secure Daniels’ presence at the resumption of the trial, we must consider that he was functioning as an advocate rather than an investigator or administrator.” 586 F.2d at" }, { "docid": "8356850", "title": "", "text": "plaintiffs in such litigation is particularly important and necessary if federal civil and constitutional rights are to be adequately protected. Footnote 17 reads as follows: Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214(1975); Scheuerv. Rhodes, 416 U.S. 232, 94 S.Ct. 1638, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). See also Entertainment Concepts, Inc. III v. Maciejewski, 631 F.2d 497, 507 (7th Cir. 1980) (denying qualified immunity defense for village officials in obscene movie theater case), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981); Morrison v. Ayoob, 627 F.2d 669, 673 (3d Cir. 1980) (judicial immunity irrelevant to § 1988), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981). In Supreme Court of Virginia, however, the Supreme Court vacated an award of counsel fees against state court judges acting in a legislative capacity. The Court thus narrowed Congress’ seemingly broad mandate and equated § 1983 liability with § 1988 counsel fee awards, at least as to absolute legislative immunity. See also Consumers Union of United States, Inc. v. American Bar Association, 470 F.Supp. 1055, 1069-70 (E.D.Va.1979) (dissenting opinion) (noting that in the legislative history’s discussion of overriding damage immunity doctrines to allow fee shifting, footnote 17 cited only executive and judicial immunity cases, not actions involving legislative immunity), vacated and remanded sub nom. Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). But see Fernandes, supra, 663 F.2d at 637 (stating that legislative immunity from damage awards is “irrelevant” to determining an award of counsel fees). See also Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 406, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979) (granting absolute immunity to members of regional planning agency acting in a legislative capacity, but limiting its holding to immunity from damages liability). . In Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880), the Court gave the following “definition” of the Speech or Debate Clause: “[it" }, { "docid": "14379303", "title": "", "text": "Cir. 1978); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978). The question presently before us is whether a judicial official is liable for attorney fees under 42 U.S.C. § 1988 when judicial immunity is not a bar to prospective relief. The Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that in any action under 42 U.S.C. § 1983, the district court, “in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” See Hutto v. Finney, 437 U.S. 678, 694, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522 (1978). In Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 738-39, 100 S.Ct. 1967, 1978, 64 L.Ed.2d 641 (1980), the Supreme Court held that attorney fees may be recovered against an official under 42 U.S.C. § 1988 when prospective relief is properly awarded against the official. The Court found, on the basis of the legislative history of § 1988, that Congress intended for attorney fees to be awarded under § 1988 to claimants who obtain prospective relief against an official but who otherwise are barred from recovering damages against the official. Id. Indeed, the House Report states: Furthermore, while damages are theoretically available under the statutes covered by (§ 1988), it should be observed that, in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy.17 Consequently, awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected. H.R.Rep.No.1558, 94th Cong., 2nd Sess. 9 (1976). We hold, therefore, that a prevailing party may recover attorney fees against a judicial official under 42 U.S.C. § 1988 when prospective relief is properly awarded against the official. See Morrison v. Ayoob, 627 F.2d 669, 672-73 (3d Cir. 1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981); Entertainment Concepts, Inc. v. Maciejewski, 631 F.2d 497, 507 (7th Cir. 1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346" }, { "docid": "8356849", "title": "", "text": "453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981) (municipality immune from liability for punitive damages for bad faith actions of its officers in § 1983 suit). . Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), circumscribes the broad congressional purpose to award attorneys’ fees in civil rights actions. In passing the Civil Rights Attorney’s Fees Awards Act, Congress specifically distinguished damage awards from counsel fees, characterizing the latter as an element of costs. S.Rep.No.94-1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5913; Fernandes v. Limmer, 663 F.2d 619, 637 (5th Cir. 1981). Following this theory, the Act’s legislative history indicates that Congress intended to allow an award of counsel fees even for defendants immune from damages. See H.R.Rep.No.94-1558, 94th Cong., 2d Sess. 9 & n.17 (1976): [I]n some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy. Consequently awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if federal civil and constitutional rights are to be adequately protected. Footnote 17 reads as follows: Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214(1975); Scheuerv. Rhodes, 416 U.S. 232, 94 S.Ct. 1638, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). See also Entertainment Concepts, Inc. III v. Maciejewski, 631 F.2d 497, 507 (7th Cir. 1980) (denying qualified immunity defense for village officials in obscene movie theater case), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981); Morrison v. Ayoob, 627 F.2d 669, 673 (3d Cir. 1980) (judicial immunity irrelevant to § 1988), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981). In Supreme Court of Virginia, however, the Supreme Court vacated an award of counsel fees against state court judges acting in a legislative capacity. The Court thus narrowed Congress’ seemingly broad mandate and equated § 1983 liability with § 1988 counsel fee awards, at least as" }, { "docid": "14379309", "title": "", "text": "65 (1981), is a footnote in which the Court acknowledged that the Fourth Circuit had held that a state magistrate was not immune from declaratory and injunctive relief. See id. at 71 n.1. . In Consumers Union, two citizens groups sued the Supreme Court of Virginia for promulgating and enforcing an unconstitutional state bar disciplinary rule that prohibited attorneys from advertising. The Supreme Court held that the Virginia court was absolutely immune from both damage liability and prospective relief in its legislative capacity, but that in its enforcement capacity, it was not immune from prospective relief, and the concomitant award of attorneys’ fees. The Court refrained from considering whether judicial immunity is a bar to prospective relief under § 1983. 446 U.S. at 735-36, 100 S.Ct. at 1976. The Court noted, however, that it had never held that judicial immunity absolutely insulates judges from declaratory or injunctive relief, and that the Court previously has granted injunctive relief against state judges in cases where the issue of judicial immunity was not raised. Id. at 735 n.14, 100 S.Ct. at 1976 n.14 (citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)). Although the Supreme Court has never held that judicial immunity is not a bar to prospective relief, it is the law in this circuit. See Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975), rev’d on other grounds sub nom. Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981). . In Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967), the Supreme Court indicated that Congress has the power to abrogate judicial immunity. Footnote 17 of the House Report contains a citation to Pierson v. Ray, which further suggests that Congress intended to allow an award of attorney fees against an official despite immunity from damage liability. See Morrison v. Ayoob, 627 F.2d 669, 672-73 (3d Cir. 1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981). ." }, { "docid": "733163", "title": "", "text": "United States, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), the Supreme Court of Virginia was sued for its role in promulgating, interpreting, and enforcing an allegedly unconstitutional disciplinary rule of the Virginia Code of Professional Responsibility. The United States Supreme Court held that although the Virginia Supreme Court was immune from damages liability for acts performed in its legislative and judicial roles, it was not immune from suit in its enforcement role. Id. at 734-36, 100 S.Ct. at 1975-77. In its analysis of the award of attorney’s fees, the Court stated at 739, 100 S.Ct. at 1978: We are not convinced that it would be unfair to award fees against the State Bar, which by statute is designated as an administrative agency to help enforce the State Bar Code. Fee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or an injunction. Nor would we disagree had the District Court awarded fees not only against the Bar but also against the Virginia Court because of its own direct enforcement role. Defendant Dorsey was responsible for recording judgments entered by confession and defendant Taylor was responsible for executing upon such judgments. It was these actions that I found violative of due process in granting plaintiffs’ motion for summary judgment. The fact that defendants may have been performing ministerial functions in good faith compliance with state law does not immunize them from liability for attorney’s fees. See, e.g., Coalition for Basic Human Needs v. King, 691 F.2d 597, 602 (1st Cir.1982); Johnson v. Mississippi, 606 F.2d 635, 637 (5th Cir.1979); Finberg v. Sullivan, 555 F.Supp. 1068, 1070 (E.D.Pa.1982), aff'd, 707 F.2d 1390 (3d Cir.1983). Permitting a good faith defense would frustrate the purpose of the Civil Rights Attorney’s Fees Awards Act in encouraging the vigorous enforcement of the civil rights laws. See Teitelbaum v. Sorenson, 648 F.2d 1248, 1251 (9th Cir.1981). B. Defendant Apartment Communities Corporation Although Apartment Communities Corporation (ACC) did not contest" }, { "docid": "14379304", "title": "", "text": "under § 1988 to claimants who obtain prospective relief against an official but who otherwise are barred from recovering damages against the official. Id. Indeed, the House Report states: Furthermore, while damages are theoretically available under the statutes covered by (§ 1988), it should be observed that, in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy.17 Consequently, awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected. H.R.Rep.No.1558, 94th Cong., 2nd Sess. 9 (1976). We hold, therefore, that a prevailing party may recover attorney fees against a judicial official under 42 U.S.C. § 1988 when prospective relief is properly awarded against the official. See Morrison v. Ayoob, 627 F.2d 669, 672-73 (3d Cir. 1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981); Entertainment Concepts, Inc. v. Maciejewski, 631 F.2d 497, 507 (7th Cir. 1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981). Because prospective relief was properly awarded against Magistrate Pulliam, see Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975), rev’d on other grounds sub. nom. Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981), Allen was entitled to an award of attorney fees under 42 U.S.C. § 1988. III. Magistrate Pulliam further contends that the amount of attorney fees under 42 U.S.C. § 1988 was excessive. We disagree. This court has recognized that the allowance of attorney fees “ ‘is within the judicial discretion of the trial judge, who has close and intimate knowledge of the efforts expended and the value of the services rendered. And an appellate court is not warranted in overturning the trial court’s judgment unless under all of the facts and circumstances it is clearly wrong.’ ” Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978) (quoting United States v. Anglin & Stevenson, 145 F.2d 622, 630 (10th Cir. 1944), cert. denied, 324 U.S. 844, 65 S.Ct. 678, 89 L.Ed. 1405 (1945)). The" }, { "docid": "12698144", "title": "", "text": "THORNBERRY, Circuit Judge: I. Introduction: This is an appeal by the State of Texas from an award of attorney’s fees to plaintiffs in this action. Litigation in this voting rights case has spanned over a decade, requiring two trips to the United States Supreme Court. The merits of this case having been finally resolved in Graves v. Barnes, 446 F.Supp. 560 (W.D.Tex.1977), affirmed, 435 U.S. 901, 98 S.Ct. 1444, 55 L.Ed.2d 492 (1978) (Graves IV), only the subsidiary issues of the award of attorney’s fees and costs are now before us on appeal. The district court directed defendant State of Texas to pay attorney’s fees and costs to the plaintiffs in the following amounts: Costs and Attorney’s Fees $365,645.20 $166,125.00 $416,933.00 Expenses $ 7,825.29 $ 10,000.00 $ 12,854.54 Name Mexican-American Legal Defense Education Fund (MALDEF) and George Korbel David Richards Don Gladden (including fees for paralegal time) Finally, by order dated May 18, 1982, the court ordered the State to pay Tony Korioth and John Collins jointly the sum of $3,600 in attorney’s fees. For the reasons stated below, we modify the judgment, and affirm as modified. II. Discussion: Before proceeding to analyze the propriety of the fee award, however, we must first dispose of a threshold issue raised by the State. Relying on Supreme Court of Virginia v. Consumer’s Union, 446 U.S. 719,100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), the State argues that since the defendants in this case, who were enforcement officials, merely followed the mandate laid down by the Texas legislature, they are entitled to absolute legislative immunity from suit. This argument misconstrues Consumer’s Union, in which the Court stated that “[f]ee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or for an injunction.” 446 U.S. at 739, 100 S.Ct. at 1978. See also Fernandez v. Limmer, 663 F.2d 619, 637 (5th Cir.1981), cert. dismissed,-U.S.-, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982). Moreover, this Court has recently awarded attorney’s fees to" } ]

[ { "docid": "23674481", "title": "", "text": "The government has cited no case and we have found none in which a seizure of all records was held valid pursuant to a generally worded warrant such as we have here. In the cases we have canvassed where a seizure of records was upheld, there has been some limitation in the warrant as to the records to be seized, e. g., United States v. Scherer, 523 F.2d 371 (7th Cir. 1975) (business records relating to the purchase and sale of firearms); Shaffer v. Wilson, 523 F.2d 175 (10th Cir. 1975) (fiscal records from January 1, 1966, to December 31, 1970). Although the warrants in Scherer and Shaffer authorized seizures similar in breadth and purpose to that executed against Doctors Abrams and London, in those cases the warrant specified clearly the scope of the search and seizure and left nothing to the discretion of the executing officers. Such limitation, moreover, must be a meaningful one. In In re Lafayette Academy, 610 F.2d 1 (1st Cir. 1979), we held unconstitutional a warrant authorizing the seizure of “most every sort of book or paper at the described premises, limited only by the qualification that the seized item be evidence of violations of ‘the laws of the United States, that is 18 U.S.C. sections 286, 287, 371, 1001, and 1014.’ ” Id., 610 F.2d at 3. See also Vonder AHE v. Howland, 508 F.2d 364 (9th Cir. 1975) (warrant authorizing seizure of all business records invalid because of its generality). In Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the Court dealt with the interlocking claims of violations of the fourth and fifth amendments relative to the seizure of business records. The information sought concerned fraudulent real estate settlement activities. Between two and three percent of the files from the law offices were seized and less than five percent of the corporate files were taken in a search lasting about four hours. The Court first dealt with the fifth amendment defense and, after an extensive review of the applicable cases, held “that the search of an individual’s office" } ]

[ { "docid": "23654136", "title": "", "text": "omission of such a limitation would have been fatal to the warrant’s validity. Andresen clearly does not dictate that appellee prevail in this case. The warrant at issue is more like warrants previously found to be overbroad. The only limitation on the search and seizure of appellants’ business papers was the requirement that they be the instrumentality or evidence of violation of the general tax evasion statute, 26 U.S.C. § 7201. That is not enough. The warrant here is nearly identical to the one disapproved in Alioto v. United States, 216 F.Supp. 48 (E.D.Wis.1963). There the IRS utilized a warrant to seize the “[b]ooks and records” of certain named parties “which are instrumentalities of crime involving the criminal provisions of Section 1621, Title 18, United States Code of Laws, and Section 7201, Internal Revenue Code of 1954.” Id. at 49. The court found such a warrant to be impermissibly general and ordered the return of all materials seized under it. The continuing validity of the reasoning of the Alioto case is demonstrated not only by Andresen but also by several recent circuit-level decisions reaching the same result in analogous situations. See e.g., United States v. Cook, 657 F.2d 730 (5th Cir. 1981); United States v. Abrams, 615 F.2d 541 (1st Cir. 1980); United States v. Roche, 614 F.2d 6 (1st Cir. 1980); In re Lafayette Academy, 610 F.2d 1 (1st Cir. 1979); United States v. Drebin, 557 F.2d 1316 (9th Cir. 1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978); VonderAhe v. Howland, 508 F.2d 364 (9th Cir. 1975). The Lafayette Academy and Abrams cases involve warrants very similar to the one issued in this case. Both cases arose out of fraud investigations. In Lafayette Academy the warrant authorized seizure of “books, papers” and other listed documents that evidenced violations of a number of listed statutory provisions. 610 F.2d at 3. In Abrams the warrant authorized the seizure of “certain business and billing and medical records” that evidenced a fraudulent scheme violative of 18 U.S.C. § 1001. 615 F.2d at 542. In both situations “[t]he officers’" }, { "docid": "5009044", "title": "", "text": "otherwise valid warrant if the actual conduct of the monitoring agents comported with the statutory command to minimize the interception of unrelated conversations. See generally Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). But assuming, arguendo, that a minimization directive in the order is required, and the statement of the affiant as to minimization procedures is material, the procedure outlined by Agent Wacks offends neither the Constitution nor the wiretap statute. Defendants analogize the minimization order (assuming it incorporated the accompanying affidavit) to warrants which have been held invalid because they authorized seizure of physical evidence unrelated to the crime alleged. See United States v. Abrams, 615 F.2d 541 (1st Cir. 1980); In re the Application of LaFayette Academy, 610 F.2d 1 (1st Cir. 1979). Those cases are inapposite in two crucial respects. Insofar as the analogy to seizure of physical evidence is appropriate, the minimization procedure stated is akin to warrants which permit the officer to examine physical evidence at the scene to determine which items are covered by an otherwise valid warrant. In Abrams, the court recognized that on-site inspection to determine which documents were covered by the warrant is essential if the warrant is to be carried out at all. 615 F.2d at 545. The Supreme Court commented in Andresen: We recognize that there are dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. Similar dangers, of course, are present in executing a warrant for the “seizure” of telephone conversations. 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n.111, 49 L.Ed.2d 627 (1976). (emphasis supplied) The minimization procedure outlined by Agent Wacks does not authorize the monitoring agents to “seize” all conversations over the stated telephone lines and determine at" }, { "docid": "12615879", "title": "", "text": "the agents. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). However, the complexity of a criminal scheme should not be used as a shield to keep authorities from obtaining documents. Id. at 481 n. 10, 96 S.Ct. at 2749 n. 10. In that case, the warrant basically limited the search to documents involving a particular parcel of land. In cases in which affidavits or other evidence establishes probable cause to believe in the existence of a pervasive scheme to defraud, all business records may be seized. United States v. Brien, 617 F.2d 299 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980); and United States v. Offices Known as 50 State Distributing Co., 708 F.2d 1371 (9th Cir.1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984). But see Voss v. Bergsgaard, 774 F.2d 402 (10th Cir.1985). The Second Circuit has adopted this test. In National City Trading Corp. v. United States, 635 F.2d 1020 (2d Cir.1980), the court noted that since there was probable cause to believe that an entire business was permeated with fraud, the agents could seize all records described in the warrant. (Id. at 1026.) Similar to the warrant in the instant case, the warrant in National Trading involved personnel files, financial records, and customer files. (Id. at 1023.) See generally United States v. Zanche, 541 F.Supp. 207 (W.D.N.Y.1982), where there was probable cause to support the seizure of documents falling into one of nine broad categories. Inspector Harding’s affidavit provided probable cause to believe that the entire operations of the businesses were permeated with fraud. Indeed, it provided probable cause to believe that the very purpose of the businesses may have been fraudulent. Under these circumstances, further specification of the documents to be seized than was provided in the affidavit was not possible. The warrant left the executing officers with no discretion. While the seizure was extraordinarily broad, and in that sense “general,” under the particular facts of this case the scope of the warrant was justified. It was not" }, { "docid": "18271778", "title": "", "text": "MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: Movants Sentinel Government Securities (“SGS”) and Sentinel Financial Instruments (“SFI”) apply pursuant to Rule 41(e), F.R. Crim.P., for an order directing the return of property seized under warrant. For the following reasons the motion is denied. SGS and SFI are brokers and dealers in money market instruments and government securities. Certain aspects of their operations have attracted the interest of the In- ■ ternal Revenue Service. SFI is presently the target of a grand jury inquiry into whether it has engaged in a widespread false trading operation, manufacturing documents so that customers could reduce their income tax liability by means of apparent “straddles.” SGS is the target of an inquiry into comparable falsification of documents in order to provide tax losses to its limited partners. The grand jury investigations were triggered by information received from a confidential informant in a position to furnish the Government with detailed descriptions of the companies’ activities. No indictments have as yet been voted. On November 17, 1981 a number of IRS agents executed search warrants issued by a magistrate of this Court and removed numerous files from the SFI and SGS offices at 100 Wall Street in Manhattan. SGS and SFI attack the search warrants as general warrants, violative of the Fourth Amendment as construed in such cases as Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965), quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 (1979); United States v. Abrams, 615 F.2d 541 (1st Cir. 1980); Application of Lafayette Academy, Inc., 610 F.2d 1 (1st Cir. 1979); United States v. Roche, 614 F.2d 6 (1st Cir. 1980); VonderAhe v. Howland, 508 F.2d 364, 369 (9th Cir. 1974) (per Leonard Moore, Ct. J., sitting by designation); and United States v. Marti, 421 F.2d 1263 (2d Cir. 1970), cert. denied, 404" }, { "docid": "7145367", "title": "", "text": "whether he placed the folder back on the bookshelf where Rheinehart picked it up. . Several other challenges by the defense to the search in general and to particular documents seized under the warrant were rejected by the trial court. . In so holding, we do not conclude that such leeway is necessarily reasonable in the circumstances of every case. We merely hold that, given the facts before us, the agents acted reasonably in examining the disputed documents. . The court cited National City Trading Corp. v. United States, 635 F.2d 1020, 1021 (2d Cir. 1980) and Matter of Designer Sportswear, 521 F.Supp. 434, 436-7 (S.D.N.Y.1981). See also, United States v. Wuagneux, 683 F.2d 1343, 1348-51 (11th Cir. 1982); United States v. Morisse, 660 F.2d 132, 135-6 (5th Cir., Unit A, 1981); United States v. Timpani, 665 F.2d 1, 4-5 (1st Cir.1981). . This specificity is underlined by the fact that less than five percent of the documents at the Quality offices were seized. . In an office with an orderly filing system, the label on certain files might exempt them from any intrusion by searching agents. . See also Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n. 11, 49 L.Ed.2d 627 (1976) (“In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized”); United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982) (“All items in a set of files may be inspected during a search provided that sufficiently specific guidelines for identifying the documents are provided in the search warrant and are followed by the officers conducting the search.”) . This standard, of course, applies only to a search for documents pursuant to a warrant or a valid exception to the warrant requirement. Naturally, police officers searching for drugs pursuant to a warrant would not be entitled to scrutinize documents since it would be immediately apparent that the documents fell outside the warrant. . See discussion, Section VII B.," }, { "docid": "23479477", "title": "", "text": "789 (1972). Likewise, in searches for papers, it is certain that some innocuous documents will be at least cursorily perused in order to determine whether they are among those papers to be seized. But no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision. Nor does the Fourth Amendment prohibit seizure of an item, such as a single ledger, merely because it happens to contain other information not covered by the terms of the warrant. United States v. Beusch, 596 F.2d 871, 876-77 (9th Cir. 1979). This flexibility is especially appropriate in cases involving complex schemes spanning many years that can be uncovered only by exacting scrutiny of intricate financial records. The Court in Andresen seems to have recognized that the problems posed by prosecution of white-collar criminals must be accommodated: Petitioner also suggests that the specific list of the documents to be seized constitutes a “general warrant.” We disagree. Under investigation was a complex real estate scheme whose existence could be proved only by piecing together many bits of evidence. Like a jigsaw puzzle, the whole “picture” of petitioner’s false pretenses scheme with respect to Lot 13 T would be shown only by placing in the proper place the many pieces of evidence that, taken singly, would show comparatively little. The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect’s possession. 427 U.S. at 480 n.10, 96 S.Ct. at 2748 n.10. See also United States v. Jacobs, supra; United States v. Abrams, 615 F.2d 541, 547-51 (1st Cir. 1980) (Campbell, J., concurring). The district court’s order will be vacated and the case remanded for reconsideration in light of this opinion. . Quoted in Walter v. United States, 447 U.S. 649, 656 n.7, 100 S.Ct. 2395, 2401 n.7, 65 L.Ed.2d 410 (1980); Andresen v. Maryland, 427 U.S. 463, 479, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976)." }, { "docid": "16692389", "title": "", "text": "actually transpired and for which probable cause had been established.” In re Application of Lafayette Academy, supra, at 5. The government contends that this requirement that the affidavit be incorporated into and served with the warrant does not apply when the requirements of United States v. Cortellesso, supra, are met. However, Corteliesso addresses the question when an affidavit may indicate that a generic description of the materials to be searched is sufficient, not when an affidavit may supply needed particularity without being attached to or incorporated in the warrant. Apparent confusion over this distinction leads the government to restate in this context the same argument based on Corteliesso rejected above. The argument does not gain new luster through repetition. Affirmed. . We need not express an opinion on whether further particularization would be required beyond the limitation by reference to motor vehicle insurance. Nonetheless we note that the detailed nature of the affidavit indicates that a further breakdown of the generic descriptions into “descriptions of particularized items”, such as automobile insurance applications bearing the code letters indicating the amounts of overcharges, may have been possible and would be desirable. See In re Application of Lafayette Academy, supra, at 4 n. 4. Furthermore, we are concerned because the warrants were not limited to records generated in a stated period of time. See United States v. Abrams, 615 F.2d 541, (1st Cir. 1980). . We summarily reject the government’s argument that Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), established that a less exacting standard of particularity will be applied to the search of business records than to searches for other objects. The court did state that the complexity of a fraud scheme should not redound to a defendant’s advantage by making the drafting of a search warrant impossible. However, the Court was there addressing the petitioner’s argument that the lengthy specific list of documents to be seized constituted a “general warrant” and was not in any way suggesting that general descriptions of the items to be searched or seized, standing alone, would be sufficient. Id. at" }, { "docid": "12615878", "title": "", "text": "and “former” employees and does not say how these employees came to conclude that the businesses practices were illegal. The court agrees with the defendants’ position as to paragraph 15. However, even without considering either paragraph, the warrant still provides ample probable cause. C. Particularity of the Warrant Defendants maintain that the warrant issued here is a “general warrant” and, as such, violative of the particularity requirement of the fourth amendment of the United States Constitution. At oral argument, the government conceded that the warrant was extremely broad in scope, but maintained that it does not violate the Constitution. The warrant authorized a daytime search of defendants’ offices at the Statler Towers and of a van parked outside the offices. It permitted an extensive search for, among other things, business, personnel, and financial records, any banking records, customer lists, records of mailings or telephone calls, stamps, envelopes, and telephones. Courts must be cautious when dealing with search warrants for documents. A warrant must be sufficiently particular so that nothing is left to the discretion of the agents. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). However, the complexity of a criminal scheme should not be used as a shield to keep authorities from obtaining documents. Id. at 481 n. 10, 96 S.Ct. at 2749 n. 10. In that case, the warrant basically limited the search to documents involving a particular parcel of land. In cases in which affidavits or other evidence establishes probable cause to believe in the existence of a pervasive scheme to defraud, all business records may be seized. United States v. Brien, 617 F.2d 299 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980); and United States v. Offices Known as 50 State Distributing Co., 708 F.2d 1371 (9th Cir.1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984). But see Voss v. Bergsgaard, 774 F.2d 402 (10th Cir.1985). The Second Circuit has adopted this test. In National City Trading Corp. v. United States, 635 F.2d 1020 (2d Cir.1980), the court noted" }, { "docid": "15952559", "title": "", "text": "target documents), and no restriction to any specific wrongful transaction to which the documents were related, see Andresen v. Maryland, 427 U.S. 463, 480-81, 96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976) (warrant calls only for evidence respecting single fraudulent transaction), the warrant in this case authorized “a general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) (quoted in Andresen, 427 U.S. at 480, 96 S.Ct. at 2748). Common sense shows just how broad this warrant was, as does, of course, the government’s concession at argument that there is not a single record which the warrant fails to reach. As a consequence of its breadth, the warrant violated the cardinal rule of Fourth Amendment law that “[a]s to what is to be taken, nothing is to be left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927) (quoted in Andresen, 427 U.S. at 480, 96 S.Ct. at 2748). Here, the warrant left much to the Inspectors’ discretion, and — as shown by their own affidavits — they exercised it; they decided to take only as many of Statewide’s documents as it was physically convenient to do so (those commingled with National/Transnational papers), but no more. All this notwithstanding, the government has cited a Second Circuit case that stands for the proposition that when a business is “permeated with fraud” virtually all of its business records can be seized. National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980). In deciding National City, the Second Circuit cited and relied upon the First Circuit’s decision in United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied sub. nom. Labus v. United States, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980), which held “where there is probable cause to find that there exists a pervasive scheme to defraud, all the business records of an enterprise may be seized, if they are ... accurately described so that" }, { "docid": "23036690", "title": "", "text": "v. Maryland, 427 U.S. 463, 480-82, 96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976). Nor did the list of business records to be seized provide any meaningful limitation on the Kleinberg search. The warrant encompassed virtually every document that one might expect to find in a modem export company’s office. Again, the fourth amendment requires more. See Id.; see also In re Grand Jury Proceedings (Young), 716 F.2d 493, 498 (8th Cir.1983) (“laundry list of various type of records is insufficient to save the search warrant”); Roberts v. United States, 656 F.Supp. 929, 934 (S.D.N.Y.1987) (“By listing every type of record that could conceivably be found in an office, the warrant effectively authorized the inspectors to cart away anything that they could find on the premises.”); cf. Cardwell, 680 F.2d at 78; Abrams, 615 F.2d at 543; Roche, 614 F.2d at 7; Lafayette Academy, 610 F.2d at 5. We recognize that some lower courts have found similar warrants to be sufficiently particular. The government relies on United States v. Moller-Butcher, 560 F.Supp. 550, 557 (D.Mass.1983) where the district court found a warrant seeking “records which are required under the Export Administration Act, 15 C.F.R. § 387.13, by all businesses sending electronic equipment outside the United States” to be sufficiently particular. The district court in United States v. Gregg, 629 F.Supp. 958, 966-67 (W.D.No.1986), aff'd 829 F.2d 1430 (8th Cir.1987), approved a similar warrant. We are unpersuaded by these decisions. Neither court clearly explained why the warrant in question is sufficient; the analysis is brief and concluso-ry. Moreover, there are distinguishing features that limit the value of these decisions in our present inquiry. The government also argues that the facial overbreadth of the warrant is not fatal because any doubts about what was to be seized “could be resolved by resort to the affidavit which was a part of the warrant and which the agents had with them at the location of the search.” Brief of Appellant at 38. We disagree. It is true that the particularity of an affidavit may cure an overbroad warrant, but only “where the affidavit and" }, { "docid": "23564021", "title": "", "text": "L.Ed.2d 527 (1983). Little doubt also exists that the warrants issued were sufficiently particular. They described in detail the premises to be searched and the items to be seized, leaving nothing to the discretion of the officers executing the warrants. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). In fact, when confusion arose as to whether the first warrant permitted open files to be seized or a storage room to be searched, the postal inspectors obtained separate warrants that authorized, with particularity, these activities. A search of a law office is not, as plaintiff argued below, per se unreasonable. Courts consistently have upheld searches of law offices where, as here, the attorney at issue was the target of a criminal investigation. See, e.g., Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); In re Application of the United States for an Order, 723 F.2d 1022 (1st Cir.1983); National City Trading Corp. v. United States, 635 F.2d 1020 (2d Cir.1980); cf. O’Connor v. Johnson, 287 N.W.2d 400 (Minn.1979) (per se rule against law office searches when attorney not suspected of criminal wrongdoing). We therefore believe that the correct approach to this issue, as articulated by the district court, is not to immunize law offices .from searches, but to scrutinize carefully the particularity and breadth of the warrant authorizing the search, the nature .and scope of the search, and any resulting seizure. Accordingly, we now address plaintiff’s contention regarding the scope of the search. We conclude that substantial support exists for the view that the search of the Klitzman firm was overbroad. The warrants, albeit particular, authorized the postal inspectors to search all client files, open or closed, to determine which personal injury case files to seize. The warrants also allowed the seizure of all of the firm’s financial records, file lists, and appointment books, regardless of whether those documents were connected in any way to the personal injury files sought by the grand jury. In effect, the warrants authorized virtually a wholesale search and seizure of the business records of" }, { "docid": "23564020", "title": "", "text": "that the seizure represented a gross imposition on the attorney-client privilege. We first consider whether plaintiff carried its burden by making a strong showing that it was likely to prevail on the merits. A. The district court correctly rejected plaintiffs other objections to the search, finding that only the overbreadth claim was substantial. There is little doubt that probable cause existed for a search of plaintiffs offices. Postal Inspector Krut’s affidavit, upon which the magistrate based the issuance of the primary warrant, stated that postal inspectors had interviewed approximately thirty clients of the Klitzman firm who testified as to the fraudulent activities. Probable cause, therefore, existed to believe that a federal crime had been committed and that plaintiffs office may have been “the place of concealment of evidence of the crime.” Zurcher v. Stanford Daily, 436 U.S. 547, 558, 98 S.Ct. 1970, 1978, 56 L.Ed.2d 525 (1978). Moreover, the magistrate’s determination that probable cause existed is entitled to great deference by a reviewing court. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). Little doubt also exists that the warrants issued were sufficiently particular. They described in detail the premises to be searched and the items to be seized, leaving nothing to the discretion of the officers executing the warrants. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). In fact, when confusion arose as to whether the first warrant permitted open files to be seized or a storage room to be searched, the postal inspectors obtained separate warrants that authorized, with particularity, these activities. A search of a law office is not, as plaintiff argued below, per se unreasonable. Courts consistently have upheld searches of law offices where, as here, the attorney at issue was the target of a criminal investigation. See, e.g., Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); In re Application of the United States for an Order, 723 F.2d 1022 (1st Cir.1983); National City Trading Corp. v. United States, 635 F.2d 1020 (2d Cir.1980); cf. O’Connor v. Johnson, 287" }, { "docid": "16692390", "title": "", "text": "letters indicating the amounts of overcharges, may have been possible and would be desirable. See In re Application of Lafayette Academy, supra, at 4 n. 4. Furthermore, we are concerned because the warrants were not limited to records generated in a stated period of time. See United States v. Abrams, 615 F.2d 541, (1st Cir. 1980). . We summarily reject the government’s argument that Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), established that a less exacting standard of particularity will be applied to the search of business records than to searches for other objects. The court did state that the complexity of a fraud scheme should not redound to a defendant’s advantage by making the drafting of a search warrant impossible. However, the Court was there addressing the petitioner’s argument that the lengthy specific list of documents to be seized constituted a “general warrant” and was not in any way suggesting that general descriptions of the items to be searched or seized, standing alone, would be sufficient. Id. at 480-81 n. 10, 96 S.Ct. 2737. See United States v. Abrams, supra. . 18 U.S.C. § 1341 provides: “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed," }, { "docid": "15952557", "title": "", "text": "found in an office, the warrant effectively authorized the inspectors to cart away anything that they could find on the premises. Apparently even the agents executing the warrant were astonished by its facial breadth. Postal Inspector Ramon Montero called his superior to ask whether the warrant was meant to cover documents marked “Statewide” as well as those marked “National/Transnational.” Inspector Montero was right to be chary; lacking any phrase limiting the target documents to any particular company, the warrant was so broad as to authorize the seizure of anyone’s customer files, anyone’s can-celled checks, anyone’s financial records, and so on, as long as they were found on the named premises. It appears that Montero could not believe what he was reading, and called headquarters to check. Despite the fact that the warrant authorized the seizure of any company’s documents, including Statewide’s, Inspector Montero was told by the inspector he contacted not to seize Statewide documents unless, in Montero’s words, “they were so commingled with National/Transnational documents as to render it impossible, as a practical matter to segregate them.” The reason for this commingling caveat is readily apparent: at argument the Assistant United States Attorney represented that so many documents were seized that it was physically impossible to go through every piece of paper as they were being taken. Petitioners argue that through listing everything that might possibly be found in an office of the eighties — including, incidentally, even computer hardware, software, and floppy discs — the government has created a de facto general warrant. See generally United States v. Abrams, 615 F.2d 541 (1st Cir.1980); United States v. Roche, 614 F.2d 6 (1st Cir.1980); In re Lafayette Academy, 610 F.2d 1 (1st Cir.1979) . With no limit as to the owners of the documents, see National City Trading Corp. v. United States, 635 F.2d 1020, 1021 (2d Cir.1980) (warrant limited to “property of National City Trading Corp. and persons associated with it”), no limit as to the dates of the documents to be seized, see United States v. Abrams, 615 F.2d 541 (1st Cir.1980) (failure to restrict dates of" }, { "docid": "15952556", "title": "", "text": "evolution); Fed.R.Crim.P. 12(b)(3) (“Motions to suppress evidence”) (elaborating neither substantive nor remedial standards). Although courts should not construe the Criminal Rules “to have an inflexible meaning irrespective of the circumstances,” Fallen v. United States, 378 U.S. 139, 142, 84 S.Ct. 1689, 1691, 12 L.Ed.2d 760 (1964), or “ritualistically,” C. Wright, 1 Federal Practice and Procedure § 32, at 27 (1982), the circumstances surrounding Rule 41(e) show that those promulgating it weighed the alternatives and codified their conclusion. To “accept the Rule as meaning what it says,” Schiavone, 106 S.Ct. at 2385, means that if the seizure of documents is illegal, the evidence must be returned and suppressed. The Particularity of the Warrant There is simply no issue here about the extraordinary breadth of this warrant. At argument, the Assistant United States Attorney represented that he could not think of a single office record not encompassed by the warrant. As already noted, the index of items seized runs 73 pages, including entries such as “mise, folders.” By listing every type of record that could conceivably be found in an office, the warrant effectively authorized the inspectors to cart away anything that they could find on the premises. Apparently even the agents executing the warrant were astonished by its facial breadth. Postal Inspector Ramon Montero called his superior to ask whether the warrant was meant to cover documents marked “Statewide” as well as those marked “National/Transnational.” Inspector Montero was right to be chary; lacking any phrase limiting the target documents to any particular company, the warrant was so broad as to authorize the seizure of anyone’s customer files, anyone’s can-celled checks, anyone’s financial records, and so on, as long as they were found on the named premises. It appears that Montero could not believe what he was reading, and called headquarters to check. Despite the fact that the warrant authorized the seizure of any company’s documents, including Statewide’s, Inspector Montero was told by the inspector he contacted not to seize Statewide documents unless, in Montero’s words, “they were so commingled with National/Transnational documents as to render it impossible, as a practical matter" }, { "docid": "15952560", "title": "", "text": "S.Ct. at 2748). Here, the warrant left much to the Inspectors’ discretion, and — as shown by their own affidavits — they exercised it; they decided to take only as many of Statewide’s documents as it was physically convenient to do so (those commingled with National/Transnational papers), but no more. All this notwithstanding, the government has cited a Second Circuit case that stands for the proposition that when a business is “permeated with fraud” virtually all of its business records can be seized. National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980). In deciding National City, the Second Circuit cited and relied upon the First Circuit’s decision in United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied sub. nom. Labus v. United States, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980), which held “where there is probable cause to find that there exists a pervasive scheme to defraud, all the business records of an enterprise may be seized, if they are ... accurately described so that the executing officers have no need to exercise their own judgment as to what should be seized.” The basic theory at work is that the notion of particularity is closely linked to the extent of the showing of probable cause; if there is probable cause to believe that everything in an office is fraudulent then there is just reason “to cart away all documents.” Lafayette Academy, 610 F.2d at 5. The issue, then, is what set of facts establishes that an organization is “permeated with fraud” in the National City Trading Corp. sense. In National City Trading Corp., 635 F.2d 1020, 1021-22 (2d Cir.1980), the affidavit underlying the warrant described a scheme in which every transaction was fraudulent. Although customers were being sold what they thought were commodity options, the scheme depended on their never being able to realize any benefit of their bargain. From the telephone sales pitches, to the fraudulent “purchase confirmation slip” sent to each customer after the telephone sale, to the Mailgrams demanding uncalled for payments, to the final deceptions that" }, { "docid": "23036689", "title": "", "text": "United States v. Spilotro, 800 F.2d 959, 965 (9th Cir.1986) (“effort to limit discretion solely by reference to criminal statutes was inadequate”); United States v. Abrams, 615 F.2d 541, 542-43 (1st Cir.1980) (warrant limited only by reference to records and federal fraud statute is overbroad); In re Lafayette Academy, 610 F.2d 1, 3 (1st Cir.1979) (over-broad warrant allowed “seizure of most every sort of book or paper ... limited only by the qualification that the seized item be evidence of violations of ... ‘18 U.S.C. 286, 287, 371, 1001 and 1014.’ ”). We agree with the reasoning of these courts. As an irreducible minimum, a proper warrant must allow the executing officers to distinguish between items that may and may not be seized. See 2 La-Fave, § 4.6(a), at 235-36. The Kleinberg warrant does not provide that guidance. An unadorned reference to a broad federal statute does not sufficiently limit the scope of a search warrant. Absent other limiting factors, such a warrant does not comply with the requirements of the fourth amendment. See Andresen v. Maryland, 427 U.S. 463, 480-82, 96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976). Nor did the list of business records to be seized provide any meaningful limitation on the Kleinberg search. The warrant encompassed virtually every document that one might expect to find in a modem export company’s office. Again, the fourth amendment requires more. See Id.; see also In re Grand Jury Proceedings (Young), 716 F.2d 493, 498 (8th Cir.1983) (“laundry list of various type of records is insufficient to save the search warrant”); Roberts v. United States, 656 F.Supp. 929, 934 (S.D.N.Y.1987) (“By listing every type of record that could conceivably be found in an office, the warrant effectively authorized the inspectors to cart away anything that they could find on the premises.”); cf. Cardwell, 680 F.2d at 78; Abrams, 615 F.2d at 543; Roche, 614 F.2d at 7; Lafayette Academy, 610 F.2d at 5. We recognize that some lower courts have found similar warrants to be sufficiently particular. The government relies on United States v. Moller-Butcher, 560 F.Supp. 550, 557 (D.Mass.1983)" }, { "docid": "15952558", "title": "", "text": "to segregate them.” The reason for this commingling caveat is readily apparent: at argument the Assistant United States Attorney represented that so many documents were seized that it was physically impossible to go through every piece of paper as they were being taken. Petitioners argue that through listing everything that might possibly be found in an office of the eighties — including, incidentally, even computer hardware, software, and floppy discs — the government has created a de facto general warrant. See generally United States v. Abrams, 615 F.2d 541 (1st Cir.1980); United States v. Roche, 614 F.2d 6 (1st Cir.1980); In re Lafayette Academy, 610 F.2d 1 (1st Cir.1979) . With no limit as to the owners of the documents, see National City Trading Corp. v. United States, 635 F.2d 1020, 1021 (2d Cir.1980) (warrant limited to “property of National City Trading Corp. and persons associated with it”), no limit as to the dates of the documents to be seized, see United States v. Abrams, 615 F.2d 541 (1st Cir.1980) (failure to restrict dates of target documents), and no restriction to any specific wrongful transaction to which the documents were related, see Andresen v. Maryland, 427 U.S. 463, 480-81, 96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976) (warrant calls only for evidence respecting single fraudulent transaction), the warrant in this case authorized “a general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) (quoted in Andresen, 427 U.S. at 480, 96 S.Ct. at 2748). Common sense shows just how broad this warrant was, as does, of course, the government’s concession at argument that there is not a single record which the warrant fails to reach. As a consequence of its breadth, the warrant violated the cardinal rule of Fourth Amendment law that “[a]s to what is to be taken, nothing is to be left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927) (quoted in Andresen, 427 U.S. at 480, 96" }, { "docid": "21571483", "title": "", "text": "showing special inconvenience to residents, we think the continuation of the search into the night was reasonable here. D. Search beyond the warrant’s scope: Blair’s search. Young argues that the government’s search of his house was so broad and indiscriminate that we should label it a “general search” and suppress all the evidence that law enforcement officials seized, including evidence within the warrant’s scope. The Fourth Amendment was adopted in part to ward off the menace of “general searches.” See Maryland v. Garrison 480 U.S. 79, 84, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1987); Andresen v. Maryland, 427 U.S. 463, 479-80, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); Marron v. United States, 275 U.S. 192, 195-96, 48 S.Ct. 74, 75-76, 72 L.Ed. 231 (1927); United States v. Fuccillo, 808 F.2d 173, 175 (1st Cir.), cert. denied, 482 U.S. 905, 107 S.Ct. 2481, 96 L.Ed.2d 374 (1987); United States v. Abrams, 615 F.2d 541, 543 (1st Cir.1980). But we disagree with Young’s argument. First, the warrant itself, as we have discussed above, was lawful. It was obtained through lawful procedures. See Johnson, 333 U.S. at 14, 68 S.Ct. at 369. The showing of “probable cause” was ample. See Gates, 462 U.S. at 238, 103 S.Ct. at 2332. It described the objects to be seized with sufficient precision. See Fuccillo, 808 F.2d at 176-77; Abrams, 615 F.2d at 544-45; Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324, 326-27 (1st Cir.1978). Second, although Agent Blair seized many items outside the warrant’s scope, “[ujnlawful seizure of items outside a warrant does not alone render the whole search invalid and require suppression and return of all documents seized, including those lawfully taken pursuant to the warrant.” Marvin v. United States, 732 F.2d 669, 674 (8th Cir.1984) (emphasis added). Accord United States v. Tamura, 694 F.2d 591, 597 (9th Cir.1982); United States v. Heldt, 668 F.2d 1238, 1259-60 (D.C.Cir.1981) (per curiam), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982); Abrams, 615 F.2d at 550 (Campbell, J., concurring) (“It is clear that overzealous execution [of a search, as" }, { "docid": "18271779", "title": "", "text": "executed search warrants issued by a magistrate of this Court and removed numerous files from the SFI and SGS offices at 100 Wall Street in Manhattan. SGS and SFI attack the search warrants as general warrants, violative of the Fourth Amendment as construed in such cases as Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965), quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 (1979); United States v. Abrams, 615 F.2d 541 (1st Cir. 1980); Application of Lafayette Academy, Inc., 610 F.2d 1 (1st Cir. 1979); United States v. Roche, 614 F.2d 6 (1st Cir. 1980); VonderAhe v. Howland, 508 F.2d 364, 369 (9th Cir. 1974) (per Leonard Moore, Ct. J., sitting by designation); and United States v. Marti, 421 F.2d 1263 (2d Cir. 1970), cert. denied, 404 U.S. 947, 92 S.Ct. 281, 30 L.Ed.2d 264 (1971). The Government argues that its seizure of these quantities of business records, in execution of the warrants in the forms issued, is sanctioned by National City Trading Corp. v. United States, 635 F.2d 1020 (2d Cir. 1980), and United States v. Brien, 617 F.2d 299 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980). Movants respond that these latter cases apply only where the activities of the entity whose documents are seized are entirely illicit, so that there is no basis for segregating between legitimate and illegitimate documentation, whereas in the case at bar, assuming arguendo illegal operations, there is also undisputed evidence of substantial legal operations by SGS and SFI, and the documents sought for use in the ongoing grand jury investigation are segregable from those documents that are not. Able briefs of counsel were filed on the original motion, and counsel have responded with equal skill to particular questions put by the Court in its memorandum opinion of January" } ]

[ { "docid": "22304344", "title": "", "text": "of § 1983 liability of supervisory personnel, Hays v. Jefferson County, 668 F.2d 869 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982), established that a supervisory official’s failure to supervise, control, or train the offending individual is not actionable, unless the supervisor “either encouraged the specific incident of misconduct or in some other way directly participated in it.” Id. at 874. See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984). Poe’s sexual harassment claim fails on this latter score. Even assuming the allegations in her complaint are true, she has not averred that “any of the supervisory officials who [are] defendants in this case actively participated in or authorized any harassment” by Henderson. Bellamy, 729 F.2d at 421. At best, she has merely claimed that the appellants were aware of alleged harassment, but did not take appropriate action. This is insufficient to impose liability on supervisory personnel under § 1983. Ibid. D Finally, Poe contends that the appellants’ decisions to change the conditions of her employment — assigning two male coworkers to accompany her while she worked in the Capitol and then transferring her to the Capitol Annex — in response to her sexual harassment complaints constituted gender-based discrimination in violation of the equal protection clause. Poe appears to argue that she was treated differently merely because she was a woman; that had the aggrieved party been a man, and the offending individual a woman, the appellants would have responded quite differently- There can be little doubt that, before December 1984, a female public employee had a constitutional right to be treated on the same basis as a male employee. Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), made clear that sex discrimination against a public employee is a violation of the equal protection component of the due process clause of the Fifth Amendment, as long as that discrimination cannot be shown to serve important governmental objectives and is not substantially related to achievement of" } ]

[ { "docid": "10529551", "title": "", "text": "LOKEN, Circuit Judge. Early Johnson, an Arkansas inmate, appeals the final judgment of the district court dismissing his three consolidated § 1983 actions against various prison officials who confined him to a strip cell on three occasions in 1981 and 1983. Johnson argues that the district court erred in granting summary judgment dismissing his damage claims, and in dismissing his claim for injunctive relief after an evidentiary hearing. We conclude that summary judgment was appropriate because defendants are entitled to qualified immunity, and that Johnson failed to prove he is entitled to injunctive relief. Accordingly, we affirm. I. The first two incidents occurred in May 1981 and February 1983. Each time, after creating a disturbance, Johnson was confined for 14-18 hours to a small “quiet” cell with no clothing, bedding or personal materials. After each incident Johnson filed a separate § 1983 complaint. In each case, the district court denied Johnson’s motion for appointment of counsel, conducted an evidentiary hearing, and concluded that no constitutional violation had occurred. Johnson appealed, and this court remanded both actions for further proceedings, holding that the district court had erred in failing to appoint counsel. Johnson v. Williams, 788 F.2d 1319 (8th Cir.1986). The third incident occurred in June 1983, when guards stripped Johnson and removed the bedding and personal materials from his cell because he had spit in a guard’s face. Johnson was left in his cell in this condition, in plain view of other inmates and guards, for approximately 36 hours. Johnson filed a third § 1983 complaint challenging this treatment. The three actions were consolidated following this court’s remand, and the consolidated action was set for trial. Defendants moved for summary judgment, alleging that Johnson’s damage claims were barred by qualified immunity, and that changed circumstances foreclosed his claim for in-junctive relief. The district court granted summary judgment as to the damage claims only. On April 9, 1990, following an evidentiary hearing, the district court held that Johnson had failed to prove the need for injunctive relief and dismissed the action. This appeal followed. II. Government officials who are sued for" }, { "docid": "19514149", "title": "", "text": "JAMES C. DEVER III, Chief United States District Judge On May 12, 2016, the American Association of Political Consultants, Inc., the Democratic Party of Oregon, Inc., Public Policy Polling, LLC, the Tea Party Forward PAC, and the Washington State Democratic Central Committee (collectively, \"plaintiffs\") sued United States Attorney General Loretta Lynch in her official capacity and the Federal Communications Commission (\"the FCC\") (collectively, \"defendants\") [D.E. 1]. On August 5, 2016, plaintiffs amended their complaint [D.E. 18]. Plaintiffs contend that the autodialing ban in 47 U.S.C. § 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act of 1991, as amended (\"TCPA\") violates the First Amendment. See Am. Compl. [D.E. 18] ¶¶ 2, 36-63. On September 2, 2016, defendants moved to dismiss plaintiffs' amended complaint for lack of subject-matter jurisdiction [D.E. 22] and filed a memorandum in support [D.E. 23]. See Fed. R. Civ. P. 12(b)(1). On March 15, 2017, the court denied defendants' motion to dismiss [D.E. 26]. On May 19, 2017, plaintiffs moved for summary judgment [D.E. 30] and filed a memorandum in support [D.E. 31]. On June 19, 2017, defendants responded in opposition [D.E. 33], cross-moved for summary judgment [D.E. 34], and filed a memorandum in support [D.E. 35]. On July 5, 2017, plaintiffs responded and replied [D.E. 36]. On July 20, 2017, defendants replied [D.E. 39]. As explained below, this court joins the five other United States District Courts that have addressed the issue and holds that 47 U.S.C. § 227(b)(1)(A)(iii) does not violate the First Amendment. See Gallion v. Charter Commc'ns Inc., 287 F.Supp.3d 920, 926-931 (C.D. Cal. 2018) (unpublished), appeal docketed, No. 18-80031 (9th Cir. Mar. 8, 2018); Greenley v. Laborers' Int'l Union of N. Am., 271 F.Supp.3d 1128, 1145-51 (D. Minn. 2017) ; Mejia v. Time Warner Cable Inc., 15-CV-6445 (JPO), 15-CV-6518 (JPO), 2017 WL 3278926, at *12-17 (S.D.N.Y. Aug. 1, 2017) (unpublished); Holt v. Facebook, Inc., 240 F.Supp.3d 1021, 1032-34 (N.D. Cal. 2017), appeal docketed, No. 17-80086 (9th Cir. May 12, 2017); Brickman v. Facebook, Inc., 230 F.Supp.3d 1036, 1043-49 (N.D. Cal. 2017). Thus, the court grants defendants' motion for summary judgment. I. After holding numerous" }, { "docid": "6084050", "title": "", "text": "ORDER TERRENCE W. BOYLE, District Judge. This is an action filed under 42 U.S.C. § 1983. Properly before the court are defendants’ motions for summary judgment. Plaintiff has responded, and the matter is ripe for adjudication. i. Procedural History On October 8, 2003, Michael Wayne Moore, a prisoner of the State of North Carolina, filed this case. (D.E. # 1) On October 17, 2003, the matter was dismissed as frivolous under 28 U.S.C. § 1915. (D.E. #2) Moore appealed that decision and, on May 5, 2004, the Fourth Circuit affirmed in part, vacated in part, and remanded the case back to this court. (D.E. # 8) After the case returned to the court, defendant Lightsey filed a motion to dismiss (D.E. #21 and 22) and the other defendants filed a motion for judgment on the pleadings (D.E. # 28). On March 22, 2006, 2006 WL 5518571, the court entered an order dismissing the case without prejudice as to all the defendants and claims, except the claim of deliberate indifference to the serious medical condition of Hepatitis C against Jones and Lightsey which was dismissed with prejudice. (D.E. # 33) Moore appealed that decision. (D.E. # 35) The Fourth Circuit appointed Thomas Edward Vanderbloemen as counsel to plaintiff for his appeal. (D.E. # 38) On February 28, 2008, the Fourth Circuit vacated the dismissal of the deliberate indifference to serious medical condition related to plaintiffs pancreas and Hepatitis C conditions, but affirmed the dismissal without prejudice as to the gout condition. (D.E. # 39); Moore v. Bennette, 517 F.3d 717, 730 (4th Cir.2008). The Fourth Circuit also vacated the dismissal of the retaliation claim. Id. As to the claim for deliberate indifference from the pancreatic condition and the claim for retaliation, the Fourth Circuit based its decision on a recently published Supreme Court opinion, Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), and held the issues were improperly dismissed for failure to exhaust. Id. at 725-728. On November 12, 2008, this court entered an order granting two of plaintiffs motions for appointment of counsel (D.E. #" }, { "docid": "19733260", "title": "", "text": "record also includes an affidavit from Major Michael Herrell, who was the Facility Commander at the Franklin County Sher iffs Office and the person in charge of the Franklin County Correctional Institute. According to his affidavit, Herrell fielded several complaints from members of Petty’s family in which they claimed he was not receiving proper medical attention and was not receiving his prescribed liquid diet. Herrell’s actions were also recorded in an inter-office memo sent to Barrett on April 12, 2002. Yet neither in Petty’s complaint, nor in his affidavit attached to his reply to the Defendants’ motion for summary judgment, nor in his entire deposition, is there any whiff of Sheriff Karnes’s personal involvement in or awareness of— either directly or indirectly — Petty’s situation. What is odd about the posture of this case, then, is that John Does # 1 and # 2, the prison deputies against whom a § 1983 failure-to-protect or denial-of-medical-care claim most directly should lie, and regarding whose actions such a claim most properly could be assessed, were dismissed from the suit (for improper service, as discussed in Part III-A above). And other prison officials who had some knowledge of what was going on with Petty, such as Deputy Sheriff Barrett and Major Herrell, were not even named as defendants. With this in mind, to the extent Petty’s suit is against Karnes in his personal capacity, it must fail. In fact, by assessing Petty’s claim against Karnes according to the objective/subjective framework laid out in Blackmore, the district court went above and beyond what it needed to do. There simply is no evidence that Sheriff Karnes was in any way directly involved in what happened to Petty, either initially when he was beaten in the jail cell, or later when his surgery was delayed and his requests for liquid food were allegedly not met. As this Court has stated, in order for § 1983 liability to attach to an individual municipal supervisor, [tjhere must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it." }, { "docid": "4028132", "title": "", "text": "for Mr. Orenshteyn’s infringement claims and a description of how he construes his claims. See Motion for Summary Judgment, Exh. D-9. Mr. Or-enshteyn responded on November 12, 2002, but asserted attorney-client and work product privileges as grounds for refusing to identify which patent claims he asserts against which Citrix products, what he believes those claims to mean, and why he believes those claims cover Citrix’s products. See id., Exh. D-10. Mr. Orenshteyn’ responded to Citrix’s requests for admission on January 30, 2003, and admitted that, prior to fifing his complaint, he had no opinion, and had conducted no investigation about whether any product made or sold by Citrix infringed the ’942 or ’569 patents. See id., Exh. D-12; Exh. D-13, no: 33-40. Mr. Orenshteyn, however, refus'ed to answer 58 of the requests for admission concerning, among other things, whether his counsel conducted any pre-filing factual investigation to determine whether his infringement claims have any evidentiary support, on the ground of attorney-client and work product privilege. See id., Exh. D-13, no. 73-110, 113-14, 117-18, 121-22, 125-26, 129-30, 133-34, 137-38, 141-42, 145-46, 149-50. On December 10, 2002, Citrix issued two subpoenas to Fink & Johnson seeking documents and commanding a representative to appear for a deposition. See id., Exh. D-14. Fink & Johnson responded with a motion for a protective order which was denied by Magistrate Judge Brown on February 11, 2003. See Order Re Motion for Protective Order [D.E. 106]. In fight of certain representations made by Fink & Johnson in its motion for reconsideration, Magistrate Judge Brown suspended his prior ruling and brdered Mr. Orenshteyn to serve, within five days, supplemental answers to Citrix’s interrogatories “to provide the information that Citrix asserts Orenshteyn refuses to provide” under the threat of sanctions. See Order Re: Motion for Reconsideration at 2-3 [D.E. 113]. On February 26, 2003, Mr. Orenshteyn filed his supplemental interrogatory responses as ordered by Magistrate Judge Brown. See- Motion for Summary Judgment, Exh. D-17. These responses identified certain claims that Mr. Orenshteyn contends Citrix has infringed, offered Mr. Orenshteyn’s claim construction for certain of his claim terms (but did" }, { "docid": "23510877", "title": "", "text": "FLETCHER, Circuit Judge: Clarence Eugene Jones appeals the dismissal of his section 1983 civil rights action against Multnomah County, Multnomah County jail, jail officials and employees, and other county officials, for deliberate indifference to his medical needs. We reverse and remand for further proceedings. FACTS Clarence Eugene Jones is incarcerated at the Oregon State Prison, but the alleged constitutional violations occurred while he was detained and awaiting trial at the Rocky Butte County Jail in Multnomah County. Jones’s complaint may be construed as alleging the following facts. Before his imprisonment, Jones had been scheduled for surgery for a hernia. Because he was suffering extreme discomfort and pain while in jail, Jones consulted on several occasions with Dr. Alan Melnick, the jail physician. Dr. Melnick told him the county had a “tight” budget, and that until Jones suffered a strangulated hernia, he would not receive treatment. Dr. Melnick told Jones that he would ask his supervisor (Johnson) if surgery could be performed, but also told Jones that because this surgery was considered “elective,” it was unlikely that he would receive treatment. An examination by a second doctor, Dr. Robert Childs, ordered by the state court confirmed that Jones had a hernia. Jones also made a written request for assistance from Kathy Page and Thomas Slyter (employees at the jail) in obtaining treatment, but neither responded. Jones filed a section 1983 action seeking damages and an injunction against Dr. Mel-nick, Dr. Johnson (Medical Director of the Correction Division), Page and Slyter. He later filed an amended complaint naming other supervisory personnel of the jail, county officials, and the county itself, as defendants. Three months after filing his complaint, Jones moved for default judgment against all of the defendants because they failed to answer the complaint. The county officials who had been added by the amended complaint then moved to dismiss the action against them for failure to state a claim because Jones had alleged only respondeat superior liability which is barred by Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court granted" }, { "docid": "9848540", "title": "", "text": "DECISION AND ORDER DAVID G. LARIMER, District Judge. Plaintiff, Leon Kornegay, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services (“DOCS”), alleges that his constitutional rights have been violated in a number of respects by defendants, all of whom were at all relevant times officials or employees of DOCS. The amended complaint names six individual defendants (one of whom is identified only as “Sgt. C”), as well as “John Doe etc.,” “any supervisory personnel,” the State of New York, the County of Che-mung, Elmira Correctional Facility, and the New York State Department of Health. Four of the defendants — Correction Officer (“C.O.”) Patrick Bryan, C.O. John Dandrea, DOCS Commissioner Glenn Goord, and Deputy Commissioner/Chief Medical Officer Lester Wright — -have been served and have appeared in this action. Those four defendants (“moving defendants”) have moved for summary judgment dismissing the complaint. For the reasons that follow, defendants’ motion is granted in part and denied in part. DISCUSSION I. Goord and Wright Defendants Goord and Wright move for summary judgment on the ground that plaintiff has failed to demonstrate their personal involvement in the alleged constitutional violations. A plaintiff asserting a § 1983 claim against a supervisory official in his individual capacity must allege that the supervisor was personally involved in the violation of his constitutional rights. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir.2001); Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001). That requirement may be satisfied by alleging facts showing that: (1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) the defendant exhibited deliberated indifference to others’ rights by failing to act on information indicated that constitutional acts" }, { "docid": "18856129", "title": "", "text": "DAUGHTREY, Circuit Judge. The plaintiff, William B. Miller, claims that while incarcerated in a Michigan penal institution, he was raped by another inmate. Miller filed an action under 42 U.S.C. § 1983 against the supervisor and two corrections officers of the prison camp where the alleged attack occurred, contending that he was subjected to cruel and unusual punishment because the officials had been apprised of the threats of assault made against Miller but had taken no steps to prevent such an attack, thereby evidencing deliberate indifference to his safety. Based upon the jury’s determination that the alleged rape did not, in fact, occur, the district court entered judgment in the defendants’ favor. Miller has raised several issues on appeal, one of which is disposi-tive and requires that we reverse the judgment and remand the case for retrial. That issue involves the admissibility of Michigan State Police reports concerning the investigation of the rape charge, which were introduced into evidence over plaintiff Miller’s hearsay objection to the documents. The district judge ruled the reports admissible in their entirety, relying upon this court’s unpublished opinion in Neal L. Roland v. Perry Johnson, et al., 933 F.2d 1009 (6th Cir.1991), 1991 WL 84346, at page 4 (Roland II), filed following the order of remand in Roland v. Johnson, 856 F.2d 764 (6th Cir.1988). After a careful study of the record, we conclude that our opinion in Roland II is inapplicable to the facts in this case. Those facts establish that in October 1985, plaintiff Miller was incarcerated at Camp Cusino in Alger County, Michigan. Miller alleges that during the last week of that month, he had received threats from several inmates that he would be raped in retaliation for challenging an inmate named Robert Bills. The plaintiff claims that he informed George Field, the camp supervisor, and Officer Crippen of the threats but that both officials ignored the complaints. Miller maintains that he was attacked by several inmates and raped by Bills in the camp bathroom on the evening of November 3, 1985. Despite suffering the alleged beating and rape, Miller did not" }, { "docid": "13117735", "title": "", "text": "criminal complaints against Johnson alleging disorderly conduct, telephone harassment, assault, and battery. The assault and battery charges were dismissed on April 4, 2000 and never reinstated. In return for the dismissal of those charges, Johnson pled guilty to the misdemeanor disorderly conduct and telephone harassment charges. She was sentenced to, and completed, one year of conditional supervision. In her plea agreement, Johnson admitted that she (1) acted in “an unreasonable manner”; (2) “threatened] bodily harm” to persons at the Hospital; (3) “provoke[d] a breach of the peace”; (4) “battered [Stephens]”; and (5) “created dismay.” On February 15, 2000, Johnson filed a civil complaint, pursuant to 42 U.S.C. § 1983, against the Hospital and Stephens alleging that they violated her civil rights because Stephens used excessive force when he struck her in the head. Johnson’s complaint also alleged a number of pendant state law claims. On January 24, 2002, the defendants filed a motion for summary judgment on Johnson’s Section 1983 claim. On September 27, 2002, the trial judge granted the defendant’s motion, dismissing both Johnson’s federal and pendant state law claims. Specifically, the district court found that Stephens was not a “state actor” for purposes of Section 1983. The judge’s Order also declined to retain pendant jurisdiction over Johnson’s state law claims. Johnson timely appealed the Order to this Court on October 16, 2002. We affirm. II. ANALYSIS “We review a district court’s grant of summary judgment de novo, construing all facts and inferences in the light most favorable to the non-moving party.” Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1028 (7th Cir.2004). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). 42 U.S.C. § 1983 provides in pertinent part that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen" }, { "docid": "13117734", "title": "", "text": "walk around Stephens and proceed to the human resource department. Stephens grabbed Johnson to impede her advance' and was subsequently kicked in the leg. Stephens responded by screaming out “that bitch kicked me.” Johnson Affidavit ¶ 2. Then, in an attempt to prevent Johnson from possibly doing harm to herself or others, Stephens, using a downward motion, struck Johnson in the head with the walkie-talkie he was holding in his left hand. It was only after Stephens struck Johnson that her verbal and physical barrage ceased and she left the Hospital’s lobby, where she was met at the door by Chicago police called to the scene by Williams. Police took Johnson to a local hospital where she received 13 stitches for her wound. While neither Johnson nor Stephens were, arrested the day of the incident, Johnson was issued a citation for assault, battery, and disorderly conduct. Although Johnson filed criminal battery charges against Stephens, the State’s Attorney’s Office elected not to pursue charges. Subsequently, Stephens, Koulias, and two other Hospital employees prepared and signed misdemeanor criminal complaints against Johnson alleging disorderly conduct, telephone harassment, assault, and battery. The assault and battery charges were dismissed on April 4, 2000 and never reinstated. In return for the dismissal of those charges, Johnson pled guilty to the misdemeanor disorderly conduct and telephone harassment charges. She was sentenced to, and completed, one year of conditional supervision. In her plea agreement, Johnson admitted that she (1) acted in “an unreasonable manner”; (2) “threatened] bodily harm” to persons at the Hospital; (3) “provoke[d] a breach of the peace”; (4) “battered [Stephens]”; and (5) “created dismay.” On February 15, 2000, Johnson filed a civil complaint, pursuant to 42 U.S.C. § 1983, against the Hospital and Stephens alleging that they violated her civil rights because Stephens used excessive force when he struck her in the head. Johnson’s complaint also alleged a number of pendant state law claims. On January 24, 2002, the defendants filed a motion for summary judgment on Johnson’s Section 1983 claim. On September 27, 2002, the trial judge granted the defendant’s motion, dismissing both Johnson’s" }, { "docid": "23165167", "title": "", "text": "substantiate Young’s concerns. On September 29, Young filed an official request to recreate alone, claiming that he was being forced to recreate with an inmate who posed a serious danger to him. On the same date, Young also informed Spangler and Conrad of his recreation concerns. On October 7, Young’s September 29 official request was denied. On October 28, 1988 a final recommendation was made to transfer Young. Young was first transferred to the Federal Correctional Facility in Phoenix, Arizona, then to the Federal Correctional Institution at Bas-trop, Texas where he served the remainder of his sentence. II. PROCEDURAL HISTORY Young filed a Bivens action alleging that various federal prison administrators and employees violated his Eighth Amendment right to be free from cruel and unusual punishment: (1) by acting with deliberate indifference to his serious medical needs; (2) by failing to adequately protect him from attacks by other inmates; (3) by confining him in unsanitary living conditions; (4) by disciplining him for flooding his cell without allowing him to appear before a disciplinary hearing officer; (5) by improperly transferring him to Lewisburg, and delaying his transfer away from Lewis-burg; and (6) by entering into a conspiracy to murder him. Young requested both monetary and injunctive relief, and sued defendants in both their individual and official capacities. Young also filed a motion for class certification, and a motion to compel discovery. Young’s complaint names 23 individual defendants and 21 “John Doe” defendants. We will arrange these defendants in three groups: (1) federal prison officials and employees at Seagoville, Texas and El Reno, Oklahoma (the “Seagoville defendants’’[ ]), (2) officials with the Federal Bureau of Prisons (the “Bureau of Prisons defendants”[ ]), and (3) federal prison officials and employees at the Lewisburg penitentiary (the “Lewisburg defendants”[ ]). The United States Attorney filed a motion to dismiss or alternatively for summary judgment on behalf of all the named and unnamed defendants. The government also moved, pursuant to Fed.R.Civ.P. 26(c), for an order staying all discovery. In support of his complaint, Young provided copies of incident reports, special housing unit reviews, letters sent to" }, { "docid": "23386076", "title": "", "text": "Summers, 368 F.3d at 888 (concluding that defendant-sheriff was entitled to qualified immunity because the plaintiffs complaint attributed no specific acts to the sheriff). Second, Everson attempts to conflate a § 1983 claim of individual supervisory liability with a claim of municipal liability. Section 1983 liability must be premised on more than mere respondeat superior, the right to control one’s employees. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999). A supervisor is not liable under § 1983 for failing to train unless the supervisor “either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Id. (quoting Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.1982)). Here, Everson makes no specific allegation against Sheriff Leis vis-a-vis training. He does not suggest, for example, that Sheriff Leis enacted a policy that restricted deputy training for dealing with an individual suffering an epileptic seizure. In general terms, he argues in his brief on appeal that Sheriff Leis is the chief policy officer and is responsible for the actions of those who serve under him. Appellee’s Br. at 18. He further argues by inference that because the Deputies allegedly failed to give him proper medical attention, that shows that Sheriff Leis’s training was improper and inadequate. Id. at 20. This court recently explained that these types of general allegations are insufficient to support a failure-to-train claim made against an official, as opposed to a municipality: Although the district court found that there was a genuine issue of material fact as to whether Roane County had a policy or custom of deliberately ignoring prisoners’ medical needs, that finding is not on appeal. See Meals [v. City of Memphis], 493 F.3d [720], 727 [ (6th Cir.2007) ] (a city is not entitled to appeal the district court’s denial of summary judgment on an interlocutory appeal). The Estate’s general allegations that the correctional officers and paramedics were not properly trained are more appropriately" }, { "docid": "2259802", "title": "", "text": "the motion to dismiss stage, therefore, the question, is whether the factual allegations contained in the pleading, taken as true, can' plausibly link Greffet’s unconstitutional acts, and CCA’s and/or Hickson’s alleged deliberate or con scious adoption of any plan or policy— express or otherwise. The Tenth Circuit in Dodds v. Richardson gave as an example to illustrate this principle Rizzo v. Goode, where the plaintiff sought to hold a mayor, police commissioner, and other city officials liable under 42 U.S.C. § 1983 for constitutional'-violations that unnamed individual police officers committed. See Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit noted that the Supreme Court in that case found a sufficient link between the police misconduct and the city officials’ conduct, because there was a deliberate plan by some of the named defendants to “crush the nascent labor organizations.” Dodds v. Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at 371, 96 S.Ct. 598). In a scenario with allegations strikingly similar to Pefia’s, the Honorable Duross Fitzpatrick, United States District Court Senior Judge for the Middle District of Georgia, in Brown v. Smith, 5:05-CV-475 (DF), 2006 WL 1890192 (M.D.Ga. July 10, 2006), concluded that the inmate’s allegations that the defendant “improperly and inadequately trained and supervised his staff, [and] failed to investigate incidents of alleged sexual assaults ...,” sufficiently pleaded facts that would establish violation of clearly established law to overcome the defendant’s assertion of qualified immunity, under § 1983 for the inmate’s alleged sexual assault by a prison guard. 2006 WL 1890192, at *7. Judge Fitzpatrick relied on the Eleventh Circuit’s decision in LaMarca v. Turner, 995 F.2d 1526 (11th Cir.1993), to reason that any reasonable prison or jail supervisor would conclude that his failure to implement training and supervisory measures to prevent sexual assaults by his own employees .... [and] a prison supervisor’s failure to respond to numerous reports signaling an atmosphere within the prison that subjected inmates to the continuous threat of violence, including sexual assault, was unlawful, and could subject him to supervisory liability under § 1983. 2006 WL 1890192, at *7." }, { "docid": "4028133", "title": "", "text": "129-30, 133-34, 137-38, 141-42, 145-46, 149-50. On December 10, 2002, Citrix issued two subpoenas to Fink & Johnson seeking documents and commanding a representative to appear for a deposition. See id., Exh. D-14. Fink & Johnson responded with a motion for a protective order which was denied by Magistrate Judge Brown on February 11, 2003. See Order Re Motion for Protective Order [D.E. 106]. In fight of certain representations made by Fink & Johnson in its motion for reconsideration, Magistrate Judge Brown suspended his prior ruling and brdered Mr. Orenshteyn to serve, within five days, supplemental answers to Citrix’s interrogatories “to provide the information that Citrix asserts Orenshteyn refuses to provide” under the threat of sanctions. See Order Re: Motion for Reconsideration at 2-3 [D.E. 113]. On February 26, 2003, Mr. Orenshteyn filed his supplemental interrogatory responses as ordered by Magistrate Judge Brown. See- Motion for Summary Judgment, Exh. D-17. These responses identified certain claims that Mr. Orenshteyn contends Citrix has infringed, offered Mr. Orenshteyn’s claim construction for certain of his claim terms (but did not explain the basis for those constructions), and included claim charts which are devoid of any evi-dentiary citations. See id. at 2-21, 23-37. C. Mr. Orenshteyn’s Admission in the IBM Lawsuit In another lawsuit filed by Mr. Orenshteyn pending in the Southern .District of New York, see Alexander S. Orenshteyn v. International Business Machines Corp., No. 1:02-CV-5074, Mr. Orenshteyn admitted (in his answer to IBM’s counterclaim) that the ’942 and ’569 patents are, in fact, invalid. See Motion for Summary Judgment, Exh. D-26 at ¶ 32; Exh. D-27 at ¶ 8. Mr. Orenshteyn filed his answer with this admission on October 28, 2002. Although Mr. Orenshteyn’s counsel — who also represent him in the New York action — refer to the admission as a scrivener’s error, they have yet to move to amend the answer or correct the alleged mistake. II. Summary Judgment Standard Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as" }, { "docid": "16109516", "title": "", "text": "MEMORANDUM OPINION AND ORDER ANN MARIE DONIO, United States Magistrate Judge. THIS MATTER, comes before the Court by way of motion [Doc. No. 58] for summary judgment filed by Defendants Gandy, Saduk, and Roman, (hereinafter referred to collectively as “Defendant Officers”), and Defendants George W. Hay-man, Commissioner, N.J. Department of Corrections, Thomas Sullivan, Administrator Bayside State Prison, and Karen Balicki, Administrator. Plaintiffs complaint arises out of an alleged July 9, 2007 incident at Bayside State Prison (hereinafter referred to as “BSP”) (PL’s Compl. [Doc. No. 1] ¶ ¶ 4, 5). Plaintiff alleges that Defendant Officers Gandy and Saduk assaulted Plaintiff while Plaintiff was in custody at BSP. Plaintiff alleges that Defendant Officer Roman and SCO John Doe conspired to assault Plaintiff and that Defendant Nurse Jane Doe failed to provide Plaintiff proper medical treatment. (Id. ¶ 5.) Plaintiff also alleges that Defendants Balicki, Sullivan, and Hayman failed to adequately train and supervise the officers and prison staff under their control, that this failure to train and supervise resulted in the assault, and that these Defendants were deliberately indifferent to his medical needs following the alleged assault. (PL’s Am. Compl. [Doc. No. 17] ¶ ¶ 2, 5.) Plaintiff brings claims under 42 U.S.C. § 1983 for violations of his Eighth Amendment right against cruel and unusual punishment. Plaintiff additionally alleges violations of the New Jersey constitutional provision against cruel and unusual punishment. (Id. ¶ 2.) Defendants have moved for summary judgment [Doc. No. 58] pursuant to Federal Rule of Civil Procedure 56 on a number of grounds. Defendants assert that: (1) Plaintiffs amended complaint against Defendants Balicki, Sullivan, and Hayman is barred by the statute of limitations; (2) Plaintiffs .claims are barred because of Plaintiffs failure to exhaust his administrative remedies; (3) Plaintiffs claims against Defendants Balicki, Sullivan, and Hayman must be dismissed because they are solely based on an impermissible theory of respondeat superior; (4) Defendants are entitled to dismissal of Plaintiffs official capacity claims because such claims are barred by the Eleventh Amendment, and because Defendants in their official capacities are not persons amenable to suit under 42 U.S.C." }, { "docid": "22698504", "title": "", "text": "did not err in dismissing them. Johnson asserts that the court erred by ruling in favor of the officers with supervisory authority — Captain Carr, Lieutenant Moback, Sergeant Blaukat, and Sergeant Riley — because they witnessed the actions of their subordinates and failed to stop them. Appellees respond that there is no respondeat superior liability under § 1983 and that there is no basis for a deliberate indifference claim against them. Supervisors can be individually liable if they directly participate in a constitutional violation or if they failed to supervise and train officers. See Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir.1996). Johnson’s allegations against Captain Carr are that he used a racial epithet against Mitchell and ordered her hygiene items removed; they do not support an Eighth Amendment claim against him. Johnson provided no evidence that the supervisors were deliberately indifferent or tacitly authorized any excessive force used, see id., or that there was inadequate training or supervision. For these reasons the supervisors were appropriately granted summary judgment. Finally, we address the district court’s grant of summary judgment in favor of Jasper County. A claim against a county is sustainable only where a constitutional violation has been committed pursuant to an official custom, policy, or practice. See Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Although Johnson claims that the county’s policies were violated in numerous ways, she does not allege that any of the policies are themselves unconstitutional. We conclude that the district court did not err in granting summary judgment in favor of the County. After a thorough review of the record, we reverse the summary judgment as to Officers Terry and Douglas and remand the claims against them for trial and we affirm the judgment of the district court dismissing the claims against all other defendants. . Lockdown is a disciplinary action which confines inmates to their cell for twenty three hours a day. . The record indicates that an OPN is a device similar to a numchuck, which consists" }, { "docid": "2084921", "title": "", "text": "(11th Cir.1982) (“The Privacy Act expressly provides for injunctive relief for only two types of agency misconduct, that is, wrongful withholding of documents ... and wrongful refusal to amend an individual’s record.... ”). In line with the foregoing, the Court concludes that Plaintiffs Privacy-Act counts fail to state claims upon which relief can be granted. Plaintiffs claims allege only that “Defendant TSA, through its employee, collected personal information from CORBETT, including photocopies of his driver’s license and boarding pass,” “5 U.S.C. § 552a(e) prescribes many requirements for federal agencies that collect personal information from individuals,” “[b]ased on the facts described above, the TSA failed to meet all of the following subsection requirements of 5 U.S.C. 552a(e): 3, 4, 5, 9, 10, 11, 12,” and “[e]ach of these subsections is individually charged as a violation of 5 U.S.C. § 552a(e).” (First Amended Complaint, D.E. 20 ¶ 131— 34.) Plaintiff alleges no actual damages separate and apart from the statutory violations themselves. Plaintiffs claims are thus insufficient to entitle him to any monetary award. Furthermore, Plaintiff seeks neither the amendment of nor the disclosure of records under 5 U.S.C. § 552a(g)(2) or (3). Accordingly, injunctive relief is not available on Plaintiffs claims either. On this basis the Court finds that Plaintiffs Privacy-Act counts fail to state claims upon which any relief can be granted, and the Court therefore grants the United States and TSA’s Motion to Dismiss as to Counts 10 through 16. d. Count 17: Freedom-of-Information-Act Claim Against TSA The United States and TSA also move to dismiss as moot Plaintiffs Freedom-of-Information-Act (FOIA) claim (Count 17). (See USA/TSA Motion, D.E. 37 at 1 n. 2.) They argue that TSA has now responded to Plaintiffs information request and tendered both documents and surveillance footage, subject to certain FOIA exemptions. (See USA/TSA Reply, D.E. 42 at 8-9; see also TSA FOIA Response, D.E. 42-1 at 1-2.) Plaintiff argues that his FOIA claim is not moot, for although TSA has responded to his request and sent documentation and video footage of the subject incident, TSA has improperly redacted several materials and not furnished all" }, { "docid": "22283708", "title": "", "text": "bloodied at about 1:30 a.m. by jailer Johnson, who had relieved Flurry at midnight. Fearing retaliation, Hale did not immediately tell Johnson that he had been beaten; instead, he said that he had injured himself falling off a table. Once out of the bullpen, however, Hale told Johnson of the beating and was allowed to spend the night elsewhere in the jail. Hale filed suit against Flurry and Smith in their individual capacities, and against Tallapoosa County (the “County”) through Smith in his official capacity. The complaint alleged in part that an excessive risk of inmate-on-inmate violence existed at the jail, that the defendants were deliberately indifferent to this risk, and that this deliberate indifference caused his beating. Following limited discovery, defendants moved for summary judgment, arguing simply that “there are no material issues of law and fact.” Hale responded with affidavits, depositions and other evidence, arguing that his evidence was sufficient to defeat summary judgment. The court granted summary judgment in favor of defendants, finding Hale’s evidence insufficient to support his Eighth Amendment claim, and entered final judgment for defendants. This appeal followed. STANDARD OF REVIEW We review the district court’s grant of summary judgment de novo. Kelly v. Curtis, 21 F.3d 1544, 1550 (11th Cir.1994). Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In other words, summary judgment is warranted if a jury, viewing all facts and any reasonable inferences therefrom in the light most favorable to plaintiffs, could not reasonably return a verdict in plaintiffs’ favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). DISCUSSION Section 1983 provides judicial remedies to a claimant who can prove that a person acting under color of state law committed an act that deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983. There is no dispute that the defendants acted under color of state" }, { "docid": "7636340", "title": "", "text": "MEMORANDUM OPINION ELLIS, District Judge. This pro se 42 U.S.C. § 1983 action presents an issue of first impression in this circuit, namely whether inmates asserting excessive force claims are required, pursuant to 42 U.S.C. § 1997e(a), to exhaust their administrative remedies. For the reasons that follow, § 1997e(a)’s broad exhaustion requirement extends to inmates asserting excessive force claims. I. Plaintiff, a Virginia inmate, brings this § 1983 action against multiple defendants. Named as defendants are: David Gar-raghty, Greensville Correctional Center (GCC) Chief Warden; Garette P. Williams, GCC Associate Warden; Gregory L. Holloway, GCC Segregation Unit Manager; Lieutenant Marvin A. Lee, GCC Prison Guard; Lieutenant D.E. Vick, GCC Prison Guard; Lieutenant Roy Harrison, GCC Corrections Officer; Sergeant S.C. Williams, GCC Prison Guard; Sergeant R. Williams, GCC Prison Guard; Lieutenant George Turner, GCC Prison Guard; Sergeant Cox, GCC Prison Guard; Sergeant Byrd, GCC Prison Guard; G. Edlow, Licensed Practical Nurse; John Does 1 through 18, GCC Prison Guards; Jane Does 1 through 3, Licensed Practical Nurses; and Ron Angelone, Director of the Virginia Department of Corrections (VDOC). Plaintiff alleges defendants violated his constitutional rights when they (i) used excessive force against him; (ii) deprived him of his basic human needs; (iii) failed to prevent known danger to him; and (iv) denied him adequate medical care. He has also presented several state constitutional statutory and common law claims invoking federal supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Plaintiff seeks declaratory relief, together with compensatory, punitive, and nominal damages, including pre- and post-judgment interest. II. At all times relevant to this action, plaintiff was incarcerated at the Greensville Correctional Center. Plaintiff asserts that on December 11, 1997, defendant Lee, under the supervision of defendant Holloway, opened the food hatch to plaintiffs cell door and observed him in full restraints. Plaintiff states that he complied with Lee’s instruction to move to the back of his cell and sit on the bed. According to plaintiff, Lee and Holloway were accompanied by a group of guards, identified as defendants Lieutenant A. Jones, Sergeant. I. Peck, Major H. Johnson, Officer G. Scott, Sergeant J. Koch, K-9" }, { "docid": "22926041", "title": "", "text": "PER CURIAM: Larry Richardson, a pro se litigant incarcerated in state prison, appeals the district court’s dismissal of his civil rights action under 42 U.S.C. § 1983 and the denial of his motion for reconsideration. We affirm in part and vacate and remand in part. I. Background On October 12, 2006, Richardson, a prisoner at the Charlotte Correctional Institution (CCI), filed a grievance with Warden Johnson, requesting single-cell housing because of his cellmate’s “unhygienic actions.” On October 16, two days before Warden Johnson received this grievance, Richardson’s cellmate attacked him in the cell, causing severe bleeding from lacerations on Richardson’s face, arms, and back. The prison authorities moved him to a different cell the next day. Thereafter, Richardson filed numerous grievances seeking a transfer to single-cell housing on various grounds, including the attack and his former cellmate’s destruction of his property. These grievances were either returned as improper or denied. After the district court granted Richardson leave to proceed in forma pauperis (IFP), he filed a pro se civil rights complaint under 42 U.S.C. § 1983 against the Secretary of the Florida Department of Corrections, James McDonough; Warden Johnson and Inspector Laughlin at CCI; and three CCI guards, “John Doe (Unknown Legal Name),” Mr. Adams, and Mr. McNealy. In relevant part, Richardson alleged that the defendants violated his Eighth Amendment rights by (1) assigning him to a cell with another inmate who was known to be dangerous and who later attacked him, (2) refusing him medical treatment for 15 hours after the attack, and (3) denying his numerous grievances and requests. In December 2007, the district court sua sponte dismissed the claims against Secretary McDonough, Mr. Adams, and Inspector Laughlin without prejudice because Richardson’s complaint contained no allegations connecting them to any violation of Richardson’s Eighth Amendment rights. The district court also dismissed Richardson’s claim against John Doe without prejudice because naming fictitious parties in pleadings was not permitted in federal court. Finally, the district court directed the United States Marshals to serve process on McNealy and Johnson by mailing the appropriate papers to Shirley Matthew, a correctional officer at" } ]

[ { "docid": "23316579", "title": "", "text": "of action in strict liability and negligence. After discovery had been completed, Hennessy filed a motion for summary judgment, arguing, among other things, that the testimony of the Peitzmeiers’ expert, Alan' Milner, was inadmissible under Federal Rule of Evidence 702 as interpreted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The District Court granted Hennessy’s motion for summary judgment, holding that Milner’s testimony was inadmissible under Federal Rule of Evidence 702 and Daubert, and that based on the admissible, undisputed evidence Hennessy was entitled to judgment as a matter of law. The Peitzmeiers appeal. II. The Peitzmeiers argue that the District Court abused its discretion in excluding Milner’s testimony. Decisions concerning the admission of expert testimony lie within the broad discretion of the trial court, and these decisions will not be disturbed on appeal absent an abuse of that discretion. Westcott v. Crinklaw, 68 F.3d 1073, 1075 (8th Cir.1995). The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states: If scientific, technical, or- other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The Supreme Court in Daubert makes it plain that the trial court is to act as a gatekeeper in screening such testimony for relevance and reliability, that is, mate an assessment whether the reasoning and methodology underlying the testimony is scientifically valid. See Daubert, 509 U.S. at 591-93, 113 S.Ct. at 2796. In doing so, the court should consider, among other factors (1) whether the theory or technique “can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known or potential rate of error”; and (4) whether the theory has been generally accepted. Id. 509 U.S. at 593, 594, 113 S.Ct. at 2796, 2797. In this case, the Peitzmeiers sought to establish" } ]

[ { "docid": "10602556", "title": "", "text": "to various seed companies, which manufacture seed containing the two patented technologies described above and sell those seeds under the Roundup-Ready® and Bollgard® brand names, respectively. Monsanto additionally requires retailers to execute standardized contracts with growers before selling Roundup-Ready® or Bollgard® seed to them. Mr. Ralph is a farmer who resides in western Tennessee. Together with his brother Roger, he operates Ralph Brothers Farms, a partnership that grows cotton, soybeans, and corn in Tennessee’s Tipton, Shelby, and Haywood Counties. In 1998, Ralph purchased 264 fifty-pound bags of soybean seed containing the patented Roundup-Ready® biotechnology. In 1999, he purchased 127 fifty-pound bags of cottonseed, containing both the Roundup-Ready® biotechnology and the Boll-gard® biotechnology (hereinafter, “stacked-trait” cottonseed). According to the contract that was in use at the time that Ralph purchased the Roundup-Ready® soybean seed and stacked-trait cottonseed (ie., the “Technology Agreement”), .the farmer, or “grower,” was required, in exchange for the opportunity to purchase and plant seed containing the Roundup-Ready® and/or Bollgard® technology, to agree, inter alia: To use the seed containing Monsanto gene technologies for planting a commercial crop only in a single season. To . not supply any of this seed to any other person or entity for planting, and to not save any crop produced from this seed for replanting, or supply saved seed to anyone for replanting. To not use this seed or provide it to anyone for crop breeding, research, generation of herbicide registration data or seed production. The Technology Agreement also contained a forum-selection clause, conferring personal jurisdiction over the grower in the Eastern District of Missouri, and a clause specifying damages in the event of breach by the Grower. The latter clause reads as follows: In the event that the Grower saves, supplies, sells or acquires seed for replant in violation of this Agreement and license restriction, in addition to other remedies available to the technology provider(s), the Grower agrees that damages will include a claim for liquidated damages, which will be based on 120 times the . applicable Technology Fee. At the time Ralph purchased the aforementioned seeds, the Technology Fee, which was" }, { "docid": "10860540", "title": "", "text": "was from 2, 172 to 2,272. Thus the average total acreage planted in 2003 was 2,222 acres. Testimony established that defendant planted seed at rates of between 95 pounds per acre to 120 pounds per acre. The average of these rates is 107.5 pounds per acre. If we multiply 2,222 acres by 107.5 pounds per acre and then divide the result by 50 pounds per unit we achieve 4,755 fifty pound units. Defendant purchased 645 fifty pound units of Roundup Ready soybean seed in 2003. With that figure in mind, 4,755 minus 645 units equals 4,110 units of infringing soybean seed. Defendant signed the license agreement which prohibited him from saving and planting the saved seed. Further, he acknowledged that he was aware that he was so prohibited. His replanting of saved seed therefore was clearly willful. The use of a patented product without authority is patent infringement. 35 U.S.C. § 271(a). This section provides, “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States... during the term of the patent therefor, infringes the patent.” This provision is clear and unambiguous. In cases construing the ’605 patent, courts have consistently found that planting saved Roundup Ready soybean seeds constitutes infringement of the patent. Monsanto v. McFarling, 363 F.3d 1336 (Fed.Cir.2004)(affirming district court’s grant of summary judgment on the issue); Monsanto v. Ralph, 382 F.3d 1374 (Fed.Cir.2004); Monsanto v. Scruggs, 342 F.Supp.2d 584, 593-597 (N.D.Miss.2004). Defendant’s reliance on J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred, International, Inc., 534 U.S. 124, 122 S.Ct. 593, 151 L.Ed.2d 508 (2002) and the Plant Variety Protection Act of 1970 in support of his position that he is not subject to plaintiffs claim for infringement is clearly misplaced and unavailing. In Monsanto v. McFarling, decided subsequent to J.E.M., the Federal Circuit rejected the possibility that the PVPA preempted an infringement claim. “[T]he right to save seed of plants registered under the PVPA does not impart the right to save seed of plants patented under the Patent Act.” McFarling, 302 F.3d at 1298-99. See also, Monsanto v. McFarling, 368 F.3d" }, { "docid": "8995930", "title": "", "text": "so.... At its simplest, McFarling effectively argues ... that he should be granted a compulsory license to use the patent rights in conjunction with the second-generation ROUNDUP READY® soybeans in his possession after harvest. We decline to hold that Monsanto’s raw exercise of its right to exclude from the patented invention by itself is a \"tying ar- McFarling, 363 F.3d at 1342. The defendants also claimed that Monsanto tied the use of its traits to the purchase of seed in subsequent years. This, too, is an attack on Monsanto's no replant policy. It likewise fails. . The same is true with regard to the defendants’ challenge to Monsanto's grower license agreements since 1999. The Court categorically rejects the assertion that Monsanto's failure to list all approved non-Roundup gly-phosate herbicides in the technology agreement causes consumer confusion and unduly bolsters Monsanto's branded products. The agreement provides: \"Grower [a]grees ... [t]o use on Roundup Ready crops only a Roundup® agricultural herbicide or other authorized non-selective herbicide which could not be used in the absence of the Roundup Ready gene (see TUG [Technology Use Guide] for details on authorized non-selective products).” The language used communicates that giyphosate-based herbicides other than Roundup may be used with Roundup Ready crops and that additional information about alternative giyphosate-based herbicides may be obtained from the TUG. The 2003 TUG provides: \"You may use another glyphosate herbicide, but only if it has been approved for use over Roundup Ready crops, and it has been labeled for this use by all required governmental agencies.” The farmer need only consult the label of any competing glyphosate product to determine whether the product is suitable for use over-the-top of Roundup Ready crops. . The Court doubts defendants' standing to challenge this aspect of Monsanto's seed partner agreements. A party who seeks injunc-tive relief under the antitrust laws must demonstrate some threatened loss or damage to his own interests. Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 111, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986). Defendants have made no showing that they are in a position to market competing glyphosate-based" }, { "docid": "21679079", "title": "", "text": "CLEVENGER, Circuit Judge. The United States District Court for the Eastern District of Missouri entered summary judgment against defendant Homan McFarling and in favor of the Monsanto Company (“Monsanto”) under Federal Rule of Civil Procedure 54(b) on some, but not all, of the claims being litigated. See Monsanto Co. v. McFarling, No. 4:00CV84 CDP, 2002 WL 32069634 (E.D.Mo. Nov. 5, 2002) (granting final judgment under Rule 54(b)); (E.D.Mo. Nov. 15, 2002) (granting Monsanto’s motions for summary judgment). The district court held that, when McFarling replanted some of Monsanto’s patented ROUNDUP READY® soybeans that he had saved from his prior year’s crop, McFarling breached the Technology Agreement that he had signed as a condition of his purchase of the patented seeds. The district court also held that McFarling had failed to demonstrate a genuine issue of material fact that prevented entry of summary judgment on any of his counterclaims or his defenses to Monsanto’s breach-of-contract claim. Finally, the district court held that a liquidated damages provision in the Technology Agreement was valid and enforceable under Missouri law and entered a judgment in the amount of $780,000.00. McFarling appeals the district court’s rulings on several of his counterclaims and defenses, as well as its ruling on the contractual damages provision. We affirm the district court on the counterclaims and defenses, but we vacate the district court’s judgment as it relates to the damages provision and remand for a determination of Monsanto’s actual damages. I Monsanto manufactures ROUNDUP® herbicide. ROUNDUP® contains glypho-sate, a chemical that indiscriminately kills vegetation by inhibiting the metabolic activity of a particular enzyme, 5-enolpyru-vyl-shikimate-3 phosphate synthase (“EPSPS”). EPSPS is necessary for the conversion of sugars into amino acids — and thus for growth — in many plants and weeds. Monsanto also markets ROUNDUP READY® genetic-modification technology. In soybean seeds, the ROUNDUP READY® technology operates by inserting the gene sequence for a variant of EPSPS that is not affected by the presence of glyphosate but that still performs the sugar-conversion function required for cell growth. Thus, ROUNDUP READY® soybean seeds produce both a “natural” version of EPSPS that is rendered" }, { "docid": "21679082", "title": "", "text": "genetically transformed plants which are tolerant toward glyphosate herbicide,” id., claim 15. United States Patent No. 5,352,605 (“the '605 patent”) relates to the use of a particular promoter in genetically modified plant cells. The '605 patent claims, inter alia, DNA sequences and plant cells containing the promoter. A promoter sequence is a DNA sequence located in proximity to the DNA sequence that encodes a protein and that, in part, tells the cellular machinery how much of the protein to make. Monsanto licenses its proprietary ROUNDUP READY® technology through two interrelated licensing schemes. First, it licenses the patented gene to seed companies that manufacture the glyphosate-tolerant seeds that are sold to farmers. Under this license, seed companies gain the right to insert the genetic trait into the germplasm of their own seeds (which can differ from seed company to seed company), and Monsanto receives the right to a royalty or “technology fee” of $6.50 for every 50-pound bag of seed containing the ROUNDUP READY® technology sold by the seed company. Monsanto also owns several subsidiary seed companies that comprise approximately 20 percent of the market for ROUNDUP READY® soybeans. Second, Monsanto requires that seed companies execute licenses, rather than conduct unconditional sales, with their farmer customers. The 1998 version of this “Monsanto Technology Agreement” (the “Technology Agreement”) between Monsanto and the soybean farmers using ROUNDUP READY® soybeans places several conditions on the soybean farmers’ use of the licensed soybeans. In exchange for the “[ojpportunity to purchase and plant seed containing” the ROUNDUP READY® technology, soybean farmers agree, inter alia: To use the seed containing Monsanto gene technologies for planting a commercial crop only in a single season. To not supply any of this seed to any other person or entity for planting, and to not save any crop produced from this seed for replanting, or supply saved seed to anyone for replanting. To not use this seed or provide it to anyone for crop breeding, research, generation of herbicide registration data or seed production. The Technology Agreement also contains a clause specifying damages in the event of breach by the farmer:" }, { "docid": "10860533", "title": "", "text": "also a variety of non-glyphosate-based herbicides or “conventional” herbicides available to farmers. Monsanto developed new plant biotech-nologies, one of which is marketed by Monsanto as Roundup Ready brand crop seed. Roundup Ready technology, also called the Roundup Ready trait, has been utilized in several agricultural crops, including soybean seed. On October 4, 1994, the 5,352,605 patent (the ’605 patent) was issued and assigned to Monsanto for an invention of Chimeric Genes for Transforming Plant Cells Using Viral Promoters, and since that date, Monsanto has been and continues to be, the owner of the ’605 patent. This invention is in the fields of biotechnology and plant biology and genetics. One or more of the claims of the ’605 patent encompass Roundup Ready soybean seeds and plants grown therefrom. All Roundup Ready soybean seeds and plants contain the chimeric gene described in claim 1 of the ’605 patent. All Roundup Ready soybean seeds and plants contain the chimeric gene described in claim 2 of the ’605 patent. The Roundup Ready trait causes crops grown from Roundup Ready seed to be resistant to Roundup brand and similar glyphosate-based herbicides. Soybean plants grown from seed which do not have the Roundup Ready trait will die if Roundup brand or similar glyphosate-based herbicides are sprayed over the top of such soybean plants. Monsanto placed the required statutory notice that its Roundup Ready biotechnology was patented on the labeling of all commercial bags containing Roundup Ready soybean seed. Monsanto would not negotiate a license with growers that would permit the grower to make unlimited use of the Roundup Ready technology. Roundup Ready soybean seed is popular among farmers. More than ninety percent (90%) of soybean acres in the United States are planted with soybean seed containing the Roundup Ready trait. Defendant is an individual who has attained the age of majority and is a resident and domiciliary of the State of North Dakota. He is a commercial grower of, among other things, soybeans and corn. Defendant has conducted farming operations involving soybeans and corn for many years, including the years 2002 through the present. He farms" }, { "docid": "10602555", "title": "", "text": "of our recent decision in Monsanto Co. v. McFarling, 363 F.3d 1336 (Fed.Cir.2004) (“McFarling ”), but that the trial court did not abuse its discretion in its choice of sanction or its denial of Ralph’s post-judgment motion, and that Ralph has not shown that the larger jury award for patent infringement is unlawful, clearly not supported by the evidence, or based only on speculation or guesswork, we vacate-in-part and affirm-in-part. BACKGROUND As explained in greater detail in McFar-ling, Monsanto developed and patented recombinant gene sequences that can be inserted into plant seeds to protect them against the effects of glyphosate-based herbicides, enabling farmers to spray herbicides such as Monsanto’s Roundup® over their fields to kill weeds and other undesirable plants without killing the desired crops that grow from those seeds. Monsanto also developed and patented recombinant gene sequences encoding proteins that are toxic to certain insects that commonly cause significant damage to host plants. When those sequences are incorporated into seeds, the resulting plants produce, in effect, their own- insecticide. Monsanto provides nonexclusive, restricted-use licenses to various seed companies, which manufacture seed containing the two patented technologies described above and sell those seeds under the Roundup-Ready® and Bollgard® brand names, respectively. Monsanto additionally requires retailers to execute standardized contracts with growers before selling Roundup-Ready® or Bollgard® seed to them. Mr. Ralph is a farmer who resides in western Tennessee. Together with his brother Roger, he operates Ralph Brothers Farms, a partnership that grows cotton, soybeans, and corn in Tennessee’s Tipton, Shelby, and Haywood Counties. In 1998, Ralph purchased 264 fifty-pound bags of soybean seed containing the patented Roundup-Ready® biotechnology. In 1999, he purchased 127 fifty-pound bags of cottonseed, containing both the Roundup-Ready® biotechnology and the Boll-gard® biotechnology (hereinafter, “stacked-trait” cottonseed). According to the contract that was in use at the time that Ralph purchased the Roundup-Ready® soybean seed and stacked-trait cottonseed (ie., the “Technology Agreement”), .the farmer, or “grower,” was required, in exchange for the opportunity to purchase and plant seed containing the Roundup-Ready® and/or Bollgard® technology, to agree, inter alia: To use the seed containing Monsanto gene technologies for" }, { "docid": "10602557", "title": "", "text": "planting a commercial crop only in a single season. To . not supply any of this seed to any other person or entity for planting, and to not save any crop produced from this seed for replanting, or supply saved seed to anyone for replanting. To not use this seed or provide it to anyone for crop breeding, research, generation of herbicide registration data or seed production. The Technology Agreement also contained a forum-selection clause, conferring personal jurisdiction over the grower in the Eastern District of Missouri, and a clause specifying damages in the event of breach by the Grower. The latter clause reads as follows: In the event that the Grower saves, supplies, sells or acquires seed for replant in violation of this Agreement and license restriction, in addition to other remedies available to the technology provider(s), the Grower agrees that damages will include a claim for liquidated damages, which will be based on 120 times the . applicable Technology Fee. At the time Ralph purchased the aforementioned seeds, the Technology Fee, which was built into the price of each seed bag, was $5.00/bag for Roundup-Ready® soybean seed and $l'12.80/bag for stacked-trait cottonseed. The district court found that Ralph saved 796 bags of Roundup-Ready® soybean seeds and 108 bags of stacked-trait cottonseed at the end of the 1998 harvest for planting in the 1999 growing season, in contravention of the Technology Agreement. According to the court, Ralph again illicitly saved seed in 1999 for planting in 2000: 438 bags of Roundup-Ready® soybean seeds and 817 bags of stacked-trait cottonseed. After an investigation indicated that Ralph might have saved and re-planted patented seeds, Monsanto filed suit against Ralph in the district court on January 28, 2000, asserting claims for, inter alia, willful infringement of Monsanto’s U.S. Patents 5,164,316, 5,196,525, 5,322,938, 5,352,-605, and 5,633,435, and breach of contract. On February 10, 2001, Ralph filed a Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue, in which he asserted that he had no contacts with Missouri and should not be required to defend a case there. Monsanto Co. v. Ralph," }, { "docid": "10602558", "title": "", "text": "built into the price of each seed bag, was $5.00/bag for Roundup-Ready® soybean seed and $l'12.80/bag for stacked-trait cottonseed. The district court found that Ralph saved 796 bags of Roundup-Ready® soybean seeds and 108 bags of stacked-trait cottonseed at the end of the 1998 harvest for planting in the 1999 growing season, in contravention of the Technology Agreement. According to the court, Ralph again illicitly saved seed in 1999 for planting in 2000: 438 bags of Roundup-Ready® soybean seeds and 817 bags of stacked-trait cottonseed. After an investigation indicated that Ralph might have saved and re-planted patented seeds, Monsanto filed suit against Ralph in the district court on January 28, 2000, asserting claims for, inter alia, willful infringement of Monsanto’s U.S. Patents 5,164,316, 5,196,525, 5,322,938, 5,352,-605, and 5,633,435, and breach of contract. On February 10, 2001, Ralph filed a Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue, in which he asserted that he had no contacts with Missouri and should not be required to defend a case there. Monsanto Co. v. Ralph, No. 4:00CV135 RWS, slip op. at 3 (E.D.Mo. Feb. 15, 2002) (“2002 Order”). The court found that assertion to be untrue, as it was discovered thereafter that Ralph had been doing business with Sinkers Corporation in Kennett, Missouri, for over twenty years in matters directly related to the underlying claims in this case. Monsanto Co. v. Ralph, No. 4:00CV135 RWS, slip op. at 22-23 (E.D.Mo. Oct. 10, 2001) (“Sanction Hearing Transcript ”). That same month, when Monsanto arrived to sample Ralph’s crops, to which Ralph had previously consented, Ralph revoked his consent, forcing Monsanto to obtain an order from the district court permitting it to enter. 2002 Order, slip op. at 4. The court granted the order on February 24, and, based on Ralph’s misrepresentation that he would need to plant his seed by March l, the court’s order gave Monsanto until that date to investigate. Ralph initially represented under oath that he had not stored any seed, but the district court found that, after being confronted with evidence from Sinkers that he had stored" }, { "docid": "10860538", "title": "", "text": "of 993 units of Roundup Ready soybean seed to defendant on May 31, 2003. The invoice for this seed is dated May 31, 2003. Defendant’s attempt to explain away the date is unpersuasive. Defendant’s self serving explanation does not overcome the unbiased testimony and documentation from Red River Grain. This purchase occurred after defendant had finished planting all of his fields. Defendant’s purchase of 1,100 gallons of glyphosate based herbicides in 2003 is consistent with the planting of Roundup Ready soybeans. Defendant claims to have purchased conventional herbicides on May 17, 2003 in the amount of $17,009.00 from Benes Service. However, the invoice copy dated May 17, 2003 is too “coincidental” to the invoice dated May 17, 2004 in the exact same amount to be credible, particularly in light of the lack of production of the original. The Court finds defendant’s explanation of the circumstances surrounding his claimed purchase of conventional herbicides on May 17, 2003 not believable. Throughout the course of this litigation, defendant has varied his claims regarding his soybean planting in 2003. He has testified that he planted the perimeters of his fields with Roundup Ready soybeans. He has testified that he planted conventional seed on some fields. He had testified that he planted all newly purchased Roundup Ready seed in 2003. These inconsistencies demonstrate defendant’s unreliability. Defendant has failed to overcome the documentation and results of scientific testing which establish that his 2003 soybean crops were planted with Roundup Ready soybean seed. He has failed to overcome the unbiased documentation evidence he purchased insufficient quantities of Roundup Ready seed in 2003 to plant his entire crop with new seed. Various testimony was presented regarding how much seed was planted and how many acres were planted in 2003. Defendant testified at different times to different amounts of seed and different amounts of acreage. There are no absolutely ascertainable numbers from which the Court can determine the exact amount of seed used, nor the exact amount of land planted with Roundup Ready soybean seed. The Court, therefore will average the minimum and maximum. The range of acreage planted" }, { "docid": "10860535", "title": "", "text": "these crops in Richland and Sargent Counties, North Dakota along with Robert and Marshall Counties, South Dakota. Additionally, defendant owns acreage in Barnes and Stustsman Counties, North Dakota along with Covington and Grant Counties, South Dakota and Beltrami County, Minnesota. This remaining acreage is farmed by defendant to crops other than soybeans or corn, rented to other farmers, or enrolled in one or more Conservation Reserve Programs, in which case, defendant receives compensation from the government in exchange for not farming this acreage. Defendant executed a Monsanto Technology Agreement on May 3, 1999. This Agreement states, inter alia, that defendant agreed to use the seed containing Monsanto gene technology solely for planting a single commercial crop. He further agreed to not supply any of this seed to any other person or entity for planting, and not to save any crop produced from the seed for replanting, or supply saved seed to anyone for replanting. Defendant knew that soybean seed containing Monsanto’s patented Roundup Ready biotechnology could not be saved and replanted and that the harvest from newly purchased Roundup Ready soybean seed must be sold as a commodity prior to 2003. Defendant provides planting dates for his crops as a part of his application for crop insurance. The final planting dates, which were provided by defendant, reflected on the crop insurance records were listed as defendant having finished planting his soybean acreage on May 6, 2003, with the exception of a single 116 acre filed planted on May 26, 2003. In 2003, defendant planted both newly purchased Roundup Ready soybean seed and soybean seed that had been saved from a prior year’s harvest. These saved seeds were stored in one or more of defendant’s grain bins. Defendant purchased 1,638 fifty pound units of Roundup Ready soybean seed in 2003. In 2003, defendant purchased 1,100 gallons of glyphosate-based herbicides. Sampling of defendant’s soybean plant material, including soybean seed pods, remaining in defendant’s 2003 soybean fields was conducted on April 23 and 24, 2004 by Agricultural Sampling Services. Dr. Kop-patschek and his sampling team conducted tests on these samples. These tests were" }, { "docid": "10860537", "title": "", "text": "performed according to Standard Operating Procedures, which were developed to provide a meaningful basis to provide statistically rehable inferences about what is contained in a particular field based upon sampling that is conducted. The Standard Operating Procedures have been reviewed and audited by the United States Environmental Protection Agency. These tests confirmed the presence of the Roundup Ready trait in all of the samples collected and tested. The samples were forwarded by Dr. Koppatschek’s sampling team to Monsanto’s laboratory for independent testing. The results of these tests confirmed the presence of the Roundup Ready trait in all field samples. The results conclusively demonstrate that all of defendant’s 2003 soybean acreage was planted with Roundup Ready soybean seed. Defendant testified that he purchased Roundup Ready soybean seed from Red River Grain prior to May 31, 2003, and that the 993 units of seeds were planted prior to May 31, 2003. The Court finds this testimony unreliable. The testimony of Jennifer Wulfekuhle, office manager for Red River Grain, establishes that she wrote an invoice for the purchase of 993 units of Roundup Ready soybean seed to defendant on May 31, 2003. The invoice for this seed is dated May 31, 2003. Defendant’s attempt to explain away the date is unpersuasive. Defendant’s self serving explanation does not overcome the unbiased testimony and documentation from Red River Grain. This purchase occurred after defendant had finished planting all of his fields. Defendant’s purchase of 1,100 gallons of glyphosate based herbicides in 2003 is consistent with the planting of Roundup Ready soybeans. Defendant claims to have purchased conventional herbicides on May 17, 2003 in the amount of $17,009.00 from Benes Service. However, the invoice copy dated May 17, 2003 is too “coincidental” to the invoice dated May 17, 2004 in the exact same amount to be credible, particularly in light of the lack of production of the original. The Court finds defendant’s explanation of the circumstances surrounding his claimed purchase of conventional herbicides on May 17, 2003 not believable. Throughout the course of this litigation, defendant has varied his claims regarding his soybean planting in 2003." }, { "docid": "10866948", "title": "", "text": "Opinion for the court filed by Circuit Judge PAULINE NEWMAN. Dissenting opinion filed by Circuit Judge CLEVENGER. PAULINE NEWMAN, Circuit Judge. Mr. Homan McFarling appeals the grant of a preliminary injunction by the United States District Court for the Eastern District of Missouri, prohibiting Mr. McFarling, pendente lite, from using the plant genes and seed obtained from crops grown from Monsanto Company’s patented soybean seed having the brand name Roundup Ready. We conclude that the district court acted within its discretion in granting the preliminary injunction. BACKGROUND Monsanto developed genetically modified plants that are resistant to glyphosate herbicides such as Roundup® brand herbicide. The herbicide can then be sprayed broadly in planted fields, killing the weeds but not harming the resistant crops. This results in substantial savings in labor costs for weed control. Monsanto’s United States Patents Nos. 5,633,435 and 5,352,-605 claim the glyphosate-tolerant plants, the genetically modified seeds for such plants, the specific modified genes, and the method of producing the genetically modified plants. Monsanto authorizes various companies to manufacture the patented seeds, which are then sold to farmers. Monsanto requires that sellers of the patented seeds obtain from the farmers/purchasers a “Technology Agreement,” and the farmers pay a license fee to Monsanto of $6.50 per 50-pound bag of soybean seed. Mr. McFarling, a farmer in Mississippi, purchased Roundup Ready® soybean seed in 1997 and again in 1998; he signed the Technology Agreement and paid the license fee for each purchase. The signature line is immediately below the following statement: “I acknowledge that I have read and understand the terms and conditions of this Agreement and that I agree to them.” The agreements include the requirement that the seeds are to be used “for planting a commercial crop only in a single season” and direct the licensee not to “save any crop produced from this seed for replanting, or supply saved seeds to anyone for replanting.” Mr. McFarling does not dispute that he violated the terms of the Technology Agreement. He saved 1,500 bushels of the patented soybeans from his harvest during one season, and instead of selling these" }, { "docid": "21679080", "title": "", "text": "law and entered a judgment in the amount of $780,000.00. McFarling appeals the district court’s rulings on several of his counterclaims and defenses, as well as its ruling on the contractual damages provision. We affirm the district court on the counterclaims and defenses, but we vacate the district court’s judgment as it relates to the damages provision and remand for a determination of Monsanto’s actual damages. I Monsanto manufactures ROUNDUP® herbicide. ROUNDUP® contains glypho-sate, a chemical that indiscriminately kills vegetation by inhibiting the metabolic activity of a particular enzyme, 5-enolpyru-vyl-shikimate-3 phosphate synthase (“EPSPS”). EPSPS is necessary for the conversion of sugars into amino acids — and thus for growth — in many plants and weeds. Monsanto also markets ROUNDUP READY® genetic-modification technology. In soybean seeds, the ROUNDUP READY® technology operates by inserting the gene sequence for a variant of EPSPS that is not affected by the presence of glyphosate but that still performs the sugar-conversion function required for cell growth. Thus, ROUNDUP READY® soybean seeds produce both a “natural” version of EPSPS that is rendered ineffective in the presence of the glyphosate in ROUNDUP® herbicide, and a genetically modified version of EPSPS that permits the soybean seeds to grow nonetheless. ROUNDUP®, or other glyphosate-based herbicides, can thus be sprayed over the top of an entire field, killing the weeds without harming the ROUNDUP READY® soybeans. The Monsanto Technology Agreement in dispute in this case lists six patents related to the various seeds that are licensed by the agreement, but Monsanto has asserted infringement in this case only under two patents that read on aspects of the use of the ROUNDUP READY® technology in soybeans. United States Patent No. 5,633,435 (“the '435 patent”) relates to the gene encoding the modified EPSPS enzyme, and sweepingly claims, inter alia, the “isolated DNA molecule” encoding it, '435 patent, claim 1; “[a] glyphosate-toler-ant plant cell comprising” that DNA molecule, id., claim 24; “[a] glyphosate-tolerane [sic] plant comprising” that plant cell, id., claim 28; “[a] seed of a glyphosate-tolerant plant,” id., claim 79; a particular “transgenic soybean plant,” id., claim 86; and “[a] method of producing" }, { "docid": "21679083", "title": "", "text": "companies that comprise approximately 20 percent of the market for ROUNDUP READY® soybeans. Second, Monsanto requires that seed companies execute licenses, rather than conduct unconditional sales, with their farmer customers. The 1998 version of this “Monsanto Technology Agreement” (the “Technology Agreement”) between Monsanto and the soybean farmers using ROUNDUP READY® soybeans places several conditions on the soybean farmers’ use of the licensed soybeans. In exchange for the “[ojpportunity to purchase and plant seed containing” the ROUNDUP READY® technology, soybean farmers agree, inter alia: To use the seed containing Monsanto gene technologies for planting a commercial crop only in a single season. To not supply any of this seed to any other person or entity for planting, and to not save any crop produced from this seed for replanting, or supply saved seed to anyone for replanting. To not use this seed or provide it to anyone for crop breeding, research, generation of herbicide registration data or seed production. The Technology Agreement also contains a clause specifying damages in the event of breach by the farmer: In the event that the Grower saves, supplies, sells or acquires seed for replant in violation of this Agreement and license restriction, in addition to other remedies available to the technology provider(s), the Grower agrees that damages will include a claim for liquidated damages, which will be based on 120 times the applicable Technology Fee. II Homan McFarling operates a 5000-acre farm in Pontotoc County, Mississippi. In 1998, McFarling executed the Technology Agreement in connection with the license of 1000 bags of ROUNDUP READY® soybean seed. McFarling concedes that he saved 1500 bushels of seed from his 1998 crop, enough to plant approximately 1500 acres, and that he replanted them in 1999. He subsequently saved 3075 bags of soybeans from his 1999 crop, replanting them in 2000. Soybeans destined for replanting are apparently cleaned after harvest. When McFarling sent his seeds saved from the 1998 season to a third party for cleaning, Monsanto had some samples taken, had the genetic makeup of the seeds tested at Mississippi State University, and thus learned that McFarling was" }, { "docid": "10860532", "title": "", "text": "OPINION, MEMORANDUM AND ORDER AUTREY, District Judge. A bench trial in this matter took place from February 13, 2006 through February 21, 2006. From the evidence adduced at trial, the Court makes the following findings of fact and conclusions of law. Findings of Fact Plaintiff Monsanto Company is a company organized and existing under the laws of the State of Delaware with its principal place of business in St. Louis, Missouri. Plaintiff Monsanto Technology LLC is a subsidiary of Monsanto and is a holding company for its intellectual property. Monsanto is in the business of de veloping, manufacturing, licensing and selling agricultural biotechnology, agricultural chemicals, and other agricultural products Monsanto developed and sells Roundup branded herbicides. The active ingredient in Roundup brand herbicides and similar non-selective herbicides is gly-phosate. Roundup brand herbicides and their generic counterparts are referred to as “glyphosate-based herbicides.” A “non-selective herbicide” means that it will kill all types of plants, whether the plant is a weed, soybean plant, or any other type of plant. In addition to glyphosate-based herbicides, there are also a variety of non-glyphosate-based herbicides or “conventional” herbicides available to farmers. Monsanto developed new plant biotech-nologies, one of which is marketed by Monsanto as Roundup Ready brand crop seed. Roundup Ready technology, also called the Roundup Ready trait, has been utilized in several agricultural crops, including soybean seed. On October 4, 1994, the 5,352,605 patent (the ’605 patent) was issued and assigned to Monsanto for an invention of Chimeric Genes for Transforming Plant Cells Using Viral Promoters, and since that date, Monsanto has been and continues to be, the owner of the ’605 patent. This invention is in the fields of biotechnology and plant biology and genetics. One or more of the claims of the ’605 patent encompass Roundup Ready soybean seeds and plants grown therefrom. All Roundup Ready soybean seeds and plants contain the chimeric gene described in claim 1 of the ’605 patent. All Roundup Ready soybean seeds and plants contain the chimeric gene described in claim 2 of the ’605 patent. The Roundup Ready trait causes crops grown from Roundup Ready" }, { "docid": "12158660", "title": "", "text": "MEMORANDUM AND ORDER CAROL E. JACKSON, District Judge. This matter is before the Court on the motion of plaintiffs Monsanto Co. and Monsanto Technology, LLC for expedited discovery and entry of a protective order. Defendant has not filed an answer or responded to the instant motion, and on March 6, 2008, the Clerk of Court entered default against him. I. Background Plaintiffs bring this action for patent infringement, pursuant to 35 U.S.C. § 271, and assert state law claims for conversion, unjust enrichment, and breach of contract. Plaintiffs are the holders of U.S. Patent Nos. 5,352,605 and U.S. RE39,247 E, which cover technology marketed as Roundup Ready® crop seed that is resistant to the herbicide Roundup®. Plaintiffs state that defendant entered into a licensing agreement with them which granted him the right to plant Roundup Ready® crop seed for the 2005 growing season. Plaintiffs assert that the license agreement prohibits the licensee from retaining, replanting, and transferring seed from the original batch, as well as seed produced from that batch. They allege that in 2007, the defendant planted soybean seed produced from Roundup Ready® seed that was planted in 2006 or earlier. Plaintiffs contend that the defendant sprayed fields with chemicals but made no effort to divert the spray away from newly germinated soybean plants, a practice they claim is consistent with the use of Roundup Ready® seed. Plaintiffs seek to conduct expedited discovery to minimize the risk of loss or destruction of the seed and crop residue that constitutes the physical evidence of infringement. Plaintiffs maintain that this evidence could be destroyed intentionally, by tillage of fields, transfer to others, or intentional destruction; or unintentionally, by weather and seed degradation. They seek an order allowing them to obtain Farm Service Agency (FSA) records that identify defendant’s fields and possible seed locations, as well as permission to enter upon the defendant’s land to collect samples. Finally, plaintiffs request a protective order prohibiting defendant from destroying evidence. The plaintiffs state that they asked defendant to provide FSA inspection records, agricultural purchase records, and crop production sales records, but he did not" }, { "docid": "21679081", "title": "", "text": "ineffective in the presence of the glyphosate in ROUNDUP® herbicide, and a genetically modified version of EPSPS that permits the soybean seeds to grow nonetheless. ROUNDUP®, or other glyphosate-based herbicides, can thus be sprayed over the top of an entire field, killing the weeds without harming the ROUNDUP READY® soybeans. The Monsanto Technology Agreement in dispute in this case lists six patents related to the various seeds that are licensed by the agreement, but Monsanto has asserted infringement in this case only under two patents that read on aspects of the use of the ROUNDUP READY® technology in soybeans. United States Patent No. 5,633,435 (“the '435 patent”) relates to the gene encoding the modified EPSPS enzyme, and sweepingly claims, inter alia, the “isolated DNA molecule” encoding it, '435 patent, claim 1; “[a] glyphosate-toler-ant plant cell comprising” that DNA molecule, id., claim 24; “[a] glyphosate-tolerane [sic] plant comprising” that plant cell, id., claim 28; “[a] seed of a glyphosate-tolerant plant,” id., claim 79; a particular “transgenic soybean plant,” id., claim 86; and “[a] method of producing genetically transformed plants which are tolerant toward glyphosate herbicide,” id., claim 15. United States Patent No. 5,352,605 (“the '605 patent”) relates to the use of a particular promoter in genetically modified plant cells. The '605 patent claims, inter alia, DNA sequences and plant cells containing the promoter. A promoter sequence is a DNA sequence located in proximity to the DNA sequence that encodes a protein and that, in part, tells the cellular machinery how much of the protein to make. Monsanto licenses its proprietary ROUNDUP READY® technology through two interrelated licensing schemes. First, it licenses the patented gene to seed companies that manufacture the glyphosate-tolerant seeds that are sold to farmers. Under this license, seed companies gain the right to insert the genetic trait into the germplasm of their own seeds (which can differ from seed company to seed company), and Monsanto receives the right to a royalty or “technology fee” of $6.50 for every 50-pound bag of seed containing the ROUNDUP READY® technology sold by the seed company. Monsanto also owns several subsidiary seed" }, { "docid": "15711496", "title": "", "text": "new trial should be granted because the district court abused its discretion by permitting Monsanto’s expert Mark Hoffman to testify at trial. Mr. Hoffman’s testimony related to the amount of a reasonable royalty for Mr. McFarling’s use of the invention. Mr. McFarling asserts that Mr. Hoffman’s testimony is inadmissible under the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and was merely a “subjective opinion as to the value of Roundup Ready seed” by a person who was neither a farmer nor an agronomist. The district court, however, ruled that Mr. Hoffman, a certified valuation analyst, was qualified to address the issue of valuation. The court found that the objections to Mr. Hoffman’s testimony “go to whether the jury should believe the witness or credit his opinions, instead of to whether the opinions have a reasonable basis and meet the Daubert requirements.” In light of Mr. McFarling’s objections, we hold that the district court did not abuse its discretion in admitting Mr. Hoffman’s testimony. We therefore uphold the trial court’s judgment as to the quantum of damages. IV The district court enjoined Mr. McFar-ling from infringing the '605 patent by planting any seed harvested from a crop of Roundup Ready soybeans, “except that Mr. McFarling may plant Roundup Ready soybeans acquired from any lawful dealer, but to do so McFarling must sign any applicable technology agreement required by Monsanto.” Monsanto objects to that clause in the court’s decree because Mon santo understands the clause as requiring it to issue a standard license to Mr. McFarling if he agrees to comply with the license terms. We do not understand the injunction to compel Monsanto to license its technology to Mr. McFarling if it chooses not to. Rather, the injunction simply reflects that if Monsanto enters a binding technology agreement with Mr. McFarling through a dealer, then Monsanto will have licensed Mr. McFarling to engage in conduct that would otherwise infringe the '605 patent; the injunction will not prohibit that licensed conduct. Monsanto’s real concern may be that, in light of the" }, { "docid": "10860536", "title": "", "text": "from newly purchased Roundup Ready soybean seed must be sold as a commodity prior to 2003. Defendant provides planting dates for his crops as a part of his application for crop insurance. The final planting dates, which were provided by defendant, reflected on the crop insurance records were listed as defendant having finished planting his soybean acreage on May 6, 2003, with the exception of a single 116 acre filed planted on May 26, 2003. In 2003, defendant planted both newly purchased Roundup Ready soybean seed and soybean seed that had been saved from a prior year’s harvest. These saved seeds were stored in one or more of defendant’s grain bins. Defendant purchased 1,638 fifty pound units of Roundup Ready soybean seed in 2003. In 2003, defendant purchased 1,100 gallons of glyphosate-based herbicides. Sampling of defendant’s soybean plant material, including soybean seed pods, remaining in defendant’s 2003 soybean fields was conducted on April 23 and 24, 2004 by Agricultural Sampling Services. Dr. Kop-patschek and his sampling team conducted tests on these samples. These tests were performed according to Standard Operating Procedures, which were developed to provide a meaningful basis to provide statistically rehable inferences about what is contained in a particular field based upon sampling that is conducted. The Standard Operating Procedures have been reviewed and audited by the United States Environmental Protection Agency. These tests confirmed the presence of the Roundup Ready trait in all of the samples collected and tested. The samples were forwarded by Dr. Koppatschek’s sampling team to Monsanto’s laboratory for independent testing. The results of these tests confirmed the presence of the Roundup Ready trait in all field samples. The results conclusively demonstrate that all of defendant’s 2003 soybean acreage was planted with Roundup Ready soybean seed. Defendant testified that he purchased Roundup Ready soybean seed from Red River Grain prior to May 31, 2003, and that the 993 units of seeds were planted prior to May 31, 2003. The Court finds this testimony unreliable. The testimony of Jennifer Wulfekuhle, office manager for Red River Grain, establishes that she wrote an invoice for the purchase" } ]

[ { "docid": "6582424", "title": "", "text": "Factoring Agreement is a classic adhesion contract which must be construed, where in any sense ambiguous, against MBA, the party which has drafted it, see Garnett, supra, 99 B.R. at 296; Vitelli, supra, 93 B.R. at 896; Nickleberry, supra, 76 B.R. at 424-25; and United Nesco, supra, 68 B.R. at 974. As the Debtors point out, except for the following excerpt, buried within paragraph 14 of the Factoring Agreement, that Agreement contains no provision relating to any specific cost pass-throughs to the Debtors: Company agrees to reimburse Factor upon demand for all attorney’s fees, court costs and other expenses incurred by Factor in enforcing any of Factor’s rights against company under this agreement. ... The absence of proof of a specific contractual provision justifying its right to reimbursement of costs requested is fatal to MBA’s claim for same. See Joshua Slocum, supra, 103 B.R. at 607-08 (absence of leases which purportedly justify certain charges from the record is fatal to landlords’ claim for such charges). We therefore believe that, except for costs and fees incurred in enforcing MBA’s rights under the Factoring Agreement, that Agreement can fairly be read as providing that all incidental costs are to be borne by MBA, compensation to which is rendered only in the form of commissions and discounted interest. Therefore, all of MBA’s claims for costs (Items “c,” “d,” “e,” “f,” and “g”) must be disallowed. The claims for pre-petition attorneys’ fees appear to overcome the second-prong hurdle, due to the presence of the sentence in paragraph 14 of the Factoring Agreement quoted two paragraphs above. The greatest difficulty which MBA must overcome as to these claims is the hurdle of proving that these requests are “reasonable.” Unless the court is in a position to assess the services of counsel provided in light of matters of record, no award or a very nominal award is all that is allowable for such services. See Vitelli, supra, 93 B.R. at 900-01 (docket entries of cases showing services performed was sufficient to justify an award of $500 out of a total of $1,188.20 requested); In re Smith," } ]

[ { "docid": "14060048", "title": "", "text": "each of the foreclosure actions; and (4) The docket entries from each of the foreclosure actions, revealing that the bankruptcy filing was only the culmination of a long series of dilatory maneuvers emanating from the resourceful brain of the Debtor’s counsel since the filing of the initial foreclosure action on April 30, 1985. D. THE MORTGAGEE’S CLAIMS FOR POST-PETITION SERVICES, WHICH WE NOW HOLD ONLY IMPLICATE 11 U.S.C. § 506(b) WHEN, LIKE HERE, A DEBTOR SEEKS TO PAY OFF THE ENTIRE MORTGAGE BALANCE IN A CHAPTER 13 PLAN, MUST BE DENIED. The parties agree that our Nickle-berry Opinion, 76 B.R. at 423-26, establishes that, under the instant facts, attorney’s fees cannot be awarded to the Mortgagee on account of performance of post-petition services by its counsel in this bankruptcy court. Our analysis therein was based on two lines of reasoning. The first, quoting our prior decision in In re Tashjian, 72 B.R. 968, 975 (Bankr.E.D.Pa.1987), is expressed thusly, 76 B.R. at 424: “only extraordinary situations, such as where legally unjustifiable conduct of a party or counsel for a party is established, or where the debtor requests some extraordinary dispensation, would we grant attorneys fees to counsel for the opposing party for his services in bankruptcy court. A contrary result would be inconsistent with not only the ‘American rule,’ as we indicated in [In re] United Nesco [Container Corp., 68 B.R. 970 (Bankr.E.D.Pa.1987)], but our frequently-reiterated view that we will allow attorneys fees and costs only where the Code specifically allows same” (citations omitted). The other line of reasoning was based on 11 U.S.C. § 506(b), which we held was the only basis pursuant to which the Code could conceivably be said to justify allowance of claims for services performed in bankruptcy court, 76 B.R. at 423-24, and provides as follows: (b) To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any" }, { "docid": "18783991", "title": "", "text": "by it to pay the $42,820.59 due to the suppliers and materialmen directly to them. D. DISCUSSION The initial argument of the Debtor is that Article VII of the Subcontract, by its terms, does not require that it pay its mate-rialmen as a pre-condition of receipt of payment from the Defendant. The Debtor argues that the contract is very specific in requiring it to produce a schedule of vendors to the Defendant and far less specific in requiring payment to the vendors as a pre-condition for payment. The Debtor argues that it is nonsensical to require it to produce a schedule of vendors if payment to the vendors itself is required. It is perhaps true that the Subcontract could have been drafted more clearly. However, the terms of Article VII of the Subcontract require the subcontractor to provide “a written certification of the full performance of all of the Subcontractor’s obligations” (emphasis added) just before stating that such performance includes providing a schedule of vendors accounts together with any guarantees. It therefore appears that the specific reference to the schedules may have been added as a means of requiring the Subcontractor to gather together all guarantees for the contractor, which might otherwise not be considered to be within the scope of the subcontractor’s obligations. We are at a loss to see how it could be concluded that “full performance” of “all” of the subcontractor’s obligations does not include the obligations of the subcontractor to pay its materialmen. The Debtor argues that the contract provision in issue is ambiguous, and that the ambiguity as to whether payment of materialmen by the Debtor is a prerequisite to receipt of payment from the Defendant must be construed against the Defendant, as the draftsperson of the form contract. See, e.g., In re Leedy Mortgage Co., 76 B.R. 440, 445-46 (Bankr.E.D.Pa.1987); In re Tashjian, 72 B.R. 968, 976 (Bankr.E.D.Pa.1987); and In re United Nesco Container Corp., 68 B.R. 970, 974 (Bankr.E.D.Pa.1987). However, in order for this principle to arise, there must be a genuine ambiguity in the contract. As we stated in In re CG" }, { "docid": "8508987", "title": "", "text": "this act in replevin by legal process, and if default at the time of repossession exceeded fifteen (15) days, expenses of retaking, repairing and storage authorized by this act. 69 P.S. § 624(A). Under the plain language of the statute, Chrysler had discretion in determining whether to offer reinstatement of the contract. The use of the precatoiy “may reinstate” in conjunction with a condition imposed on the buyer is difficult to understand. Does it mean, as Debtor appears to suggest, that once the holder allows reinstatement, the only conditions it may impose are payment of (1) all past due installments and (2) accrued charges and costs allowed by the statute, unless the Debtor “agrees with holder on mutually satisfactory arrangements”? See General Motors v. English (In re English), 20 B.R. 877, 879 (Bankr.E.D.Pa.1982) (ordering reinstatement of contract and return of vehicle under MVSFA conditioned only upon payment of past due installments and reasonable costs). This interpretation is consistent with Chrysler’s form Notice of Repossession which allows it to designate either “you do not have the right to reinstate your contract” or “you have a the right to renew your contract” by payment of the contract arrears and costs. Ex. P-2. Presumably where there are non-monetary defaults, such as lapsed insurance, Chrysler could check off the “no reinstatement” box. Chrysler’s testimony, however, is at odds with this conclusion. While not questioned about the exercise of its discretion to allow reinstatement, Messrs. Kulba and Conroy did state that it is Chrysler’s general practice and policy to require proof of insurance and the new credit application and references, in addition to the monetary cure, before reinstating. If that was all Chrysler did here, I would be reluctant to find that it had violated MVSFA. Given that the underlying contract and state law requires insurance be maintained, I find it difficult to conclude that evidence of compliance runs afoul of MVSFA. The other two requirements are more problematic. Both Messrs. Kulba and Conroy testified that the credit application was requested to secure updated locus information about Debtor and the references to have current names" }, { "docid": "16858556", "title": "", "text": "utility charges in issue cannot be included in the “rent reserved,” the Debtors cite In re Heck’s, Inc., 123 B.R. 544, 546 (Bankr.S.D.W.Va.1991) (“utility charges, janitorial expenses, ... costs of keys, electrical repairs and a sign are elements of damages, but not elements of rent”) (emphasis added); and In re Storage Technology Corp., 77 B.R. 824, 825 (Bankr.D.Colo.1986) (attorney’s fees not allowed “[e]ven though the parties defined ‘rent reserved’ as including attorney’s fees,” because such charges do not relate to use of the property). In support of their position that the utility charges in issue should be included within the term “rent reserved,” the landlords can muster only dictum from In re United Cigar Stores of America, Inc., 86 F.2d 629, 633 (2d Cir.1936), cert. denied, 300 U.S. 679, 57 S.Ct. 671, 81 L.Ed. 883 (1937) (charges for repair and maintenance might be so “regular” as to be regarded as rent); and In re Parkview-Gem, Inc., 465 F.Supp. 629, 634 (W.D.Mo.1979) (payments for maintenance, insurance, and utilities, as opposed to remodelling expenses, might be considered as rent). Despite their lack of precedential support, we believe that the landlords are entitled to prevail on this issue on the basis of the clear meaning of the terms in the context of these particular leases, as they did on the first issue in question due to the clear meaning of the pertinent Code language. Article 5E of the lease in issue specifically categorizes the contested utility charges as “additional rent.” This categorization does not appear forced or illogical, as the utility charges in issue were fixed, regular monthly payments, exactly like the “true rent” itself. In fact, they constituted between twelve (12%) percent and slightly over thirteen (13%) percent of the regular monthly payments due from the tenants in issue. See page 451 n. 1 supra. It is true that the language of Article 5E almost proves too much, by purporting to classify all charges to the tenants as “additional rent.” However, the landlords conceded (and we think properly) that sums of money due under the lease in only certain contingencies, such as" }, { "docid": "10977746", "title": "", "text": "Debtor, the Agreement of Sale must be construed as containing an enforceable mortgage contingency clause even though the type of mortgage, amount, and term were not filled in on the blank spaces on the form’s clause providing for same. We would conclude that such a clause was excluded from a form on which it appears only if it were crossed out. It must be recalled that the printed Agreement of Sale form was presented by the Debtor-broker to totally unsophisticated buyers and that therefore any ambiguities in this contract must be construed against the party supplying the contract form, i.e., the Debtor. See, e.g., In re Franks, 95 B.R. 346, 350-51 (Bankr.E.D.Pa.1989); In re Jordan, 91 B.R. 673, 678-79 (Bankr.E.D.Pa.1988); and In re United Nesco Container Corp., 68 B.R. 970, 974 (Bankr.E.D.Pa.1987). An interpretation of this contract which excluded the mortgage contingency would appear clearly contrary to the parties’ course of dealing and unconscionable, as well as constituting an impermissible, sharp interpretation of an ambiguity in the contract in favor of the Debtor. 7. Under the Lease, the Debtor was obliged to place all of the payments made to him towards the purchase-option aspect of the Lease into an “escrow account.” Any party who is a depositary under an escrow agreement is obliged to retain the sums or property placed in escrow until the happening of a designated condition, at which time the sums deposited are to be paid to the grantee, promisee, or obligee. See, e.g., In re 222 Liberty Associates, 222 Liberty Associates v. Prescott Forbes Real Estate Corp., 110 B.R. 196, 201 (Bankr.E.D.Pa.1990). The failure of the depositary to meet the terms of this undertaking constitutes a conversion and renders the depositary liable to indemnify the principal. Id. at 201-02. Furthermore, the obligation of a real estate broker to account to the depositor for funds deposited with him in escrow is mandated by state law. 63 P.S. §§ 455.604(a)(5)(i), (iii), (iv), (V). The Debtor was, by the terms of the Lease, identified as the escrow agent to hold the funds paid to him by the Plaintiff and" }, { "docid": "14861113", "title": "", "text": "be recalled that we were addressing the issue of a creditor’s right, as specifically provided by contract, to claim attorneys fees incurred in pre-petition collection activity. We were not discussing the right of a creditor to enhance the sum allowable in a claim, per § 5606(b), by allowing fees, not specifically provided by contract, for services performed in the bankruptcy court. The latter subject, we addressed more directly in our previous decision in In re United Nesco Container Corp., 68 B.R. 970, 974 (Bankr.E.D.Pa.1987), where we stated as follows: “We agree with observations of the court In re Roberts, 20 B.R. 914, 920 (Bankr.E.D.N.Y.1982), that clauses in contracts providing creditors with attorneys’ fees in certain contingencies must be ‘strictly construed* or such ‘requests fly squarely into the teeth of the American rule’ that parties must generally bear their own counsel expenses. Accord, In re Frey, 34 B.R. 607, 611 (Bankr.M.D.Pa.1983) (per WOODSIDE, J.). Hence, consistent with the holding in Roberts, we are disinclined to hold that a contract clause providing that the obligor pay attorneys’ fees to the obligee to recompense the latter for its collection efforts should be broadly read to include all services connected with the collecting, including services performed in pursuit of its claim in bankruptcy court. See also In re Johnson-Allen, 67 B.R. 968, 975-976 (Bankr.E.D.Pa.1986).” We reiterate this statement, and clarify it by explaining that, only in extraordinary situations, such as where legally unjustifiable conduct of a party or counsel for a party is established, or where the debtor requests some extraordinary dispensation, would we grant attorneys fees to counsel for the opposing party for his services in bankruptcy court. A contrary result would be inconsistent with not only the “American rule,” as we indicated in United Nesco, but our frequently-reiterated view that we will allow attorneys fees and costs only where the Code specifically allows same. See, e.g., In re National Paragon Corp., 68 B.R. 337, 340-41 (Bankr.E.D.Pa.1986) [rev’d, 76 B.R. 73 (E.D.Pa.1987) ]; and In re Jennings, 67 B.R. 106, 109-10 (Bankr.E.D.Pa.1986). Examples of such “extraordinary dispensations” are suggested by such circumstances as" }, { "docid": "2922421", "title": "", "text": "EASTERBROOK, Circuit Judge. Robert Johnson took his car to Doc Abie’s Auto Clinic in Evanston to check a leak. On being told that costly repairs were necessary, he instructed the Clinic not to do the work and set off to retrieve his car. When he arrived, however, the Clinic told him that the work had been done anyway and that the bill was more than $950. Johnson refused to pay, and the Clinic allowed him to drive home after the parties agreed to resolve their dispute in court. Five days later, however, the Clinic had someone steal Johnson’s car. (We use the word “steal” advisedly. Illinois does not permit auto mechanics to “repossess” cars, as secured lenders may do under the Uniform Commercial Code. See Leavitt v. Charles R. Hearn, Inc., 19 Ill.App.3d 980, 312 N.E.2d 806 (1st Dist.1974).) With the vehicle in its possession, the Clinic phoned Johnson and demanded $1,937 for repairs and “storage fees” as the price of its return. Hopping mad, Johnson called the police — who took the Clinic’s side. They refused to prosecute the Clinic or any of its employees, refused to accept Johnson’s written complaint, and, to top it off, forbade the Clinic to return Johnson’s car. After the Clinic’s owner came to doubt his legal authority to retain the car, and offered to hand it back to Johnson pending judicial resolution of the dispute about the bill, Officer Susan Trigourea told Johnson that he could not remove his car from the Clinic’s premises. With the support of her superior, Sergeant Clarence Fulce, Trigourea told both Johnson and the Clinic that the police department was itself taking custody of the car, which it would leave with the Clinic for safekeeping. Trigourea and Fulce also prohibited Johnson from removing his belongings from the car, even though the Clinic could not possibly have a lien on the baby stroller, work uniforms, and military documents in the vehicle. There matters have stood since July 2000: the Clinic holds the ear as the agent of the Evanston Police Department. So, at least, the complaint in this action" }, { "docid": "16689136", "title": "", "text": "to sustain such a finding. The trustee and Minor, from August 16, 1989 to November 10,1989, efficiently and expertly operated the debtor’s business, but I do not believe their stewardship caused the debt- or’s value to increase in the relatively brief period in question. As the committee’s post-trial memorandum points out: “The essence of the value of the debtor’s assets was the Cuisinarts name.” It was the utilization of the bankruptcy process, including the benefit of the automatic stay, which permitted the debtor to maintain its going-concern value. I conclude the Bank is entitled as an oversecured creditor to charge its collateral with its fees and costs if its credit agreement authorizes the recovery of such expenses and they are reasonable. In re Wonder Corp. of Am., 82 B.R. 186 (D.Conn.1988). For reimbursement of the N & A expense, the Bank asserts the following paragraph contained in its prepetition credit agreement supports its claim: § 11. EXPENSES. Whether or not the transactions contemplated hereby shall be consummated, the Company will pay ... (c) all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and costs) incurred by the Bank in connection with (i) the enforcement of this Agreement, the Notes and the other Loan Documents against the Company or the administration thereof after the occurrence of a Default or Event of Default and (ii) in connection with any litigation, proceeding or dispute whether arising hereunder or otherwise, in any way related to the Bank’s relationship (as lender but not as an affiliate of a stockholder) with the Company hereunder or under any predecessor financing agreement.... The Bank is unable to cite any authority, in or out of a bankruptcy context, where like provisions have been construed to allow a lender to retain an investment banker and charge the borrower, and the court has located none. Contractual provisions for the payment of attorney’s fees and other associated costs are to be strictly construed, In re United Nesco Container Corp., 68 B.R. 970, 974 (Bankr.E.D.Pa.1987); In re Samsa, 86 B.R. 863, 867 (Bankr.W.D.Pa.1988), and any ambiguities should be resolved against a creditor-drafter of the" }, { "docid": "8508986", "title": "", "text": "A.2d 553, 557 (1994) ( “whenever possible, courts must construe a statute so as to give effect to every word contained therein”). Giving effect to the statutory amendment, I turn now to the conduct that Debt- or contends was “deceptive” requiring a finding that a UDAP violation has occurred. Debtor argues that by requiring Debtor to do more (i.e., provide proof of insurance, a new credit application and references) than was statutorily required of her under the MVSFA to recover the Automobile (i.e., pay the Arrears), Chrysler violated UDAP. The applicable provision is § 624 which states: Reinstatement of contract after repossession Whenever a motor vehicle, sold under an installment sale contract, has been re-plevined by legal process, or repossessed otherwise than by legal process, because of default or other breach of contract, the holder may reinstate the contract and return the motor vehicle to the buyer provided the buyer pays all past due installments, or agrees with holder on mutually satisfactory arrangements, accrued default charges, costs of suit under the contract and authorized by this act in replevin by legal process, and if default at the time of repossession exceeded fifteen (15) days, expenses of retaking, repairing and storage authorized by this act. 69 P.S. § 624(A). Under the plain language of the statute, Chrysler had discretion in determining whether to offer reinstatement of the contract. The use of the precatoiy “may reinstate” in conjunction with a condition imposed on the buyer is difficult to understand. Does it mean, as Debtor appears to suggest, that once the holder allows reinstatement, the only conditions it may impose are payment of (1) all past due installments and (2) accrued charges and costs allowed by the statute, unless the Debtor “agrees with holder on mutually satisfactory arrangements”? See General Motors v. English (In re English), 20 B.R. 877, 879 (Bankr.E.D.Pa.1982) (ordering reinstatement of contract and return of vehicle under MVSFA conditioned only upon payment of past due installments and reasonable costs). This interpretation is consistent with Chrysler’s form Notice of Repossession which allows it to designate either “you do not have the" }, { "docid": "18783992", "title": "", "text": "specific reference to the schedules may have been added as a means of requiring the Subcontractor to gather together all guarantees for the contractor, which might otherwise not be considered to be within the scope of the subcontractor’s obligations. We are at a loss to see how it could be concluded that “full performance” of “all” of the subcontractor’s obligations does not include the obligations of the subcontractor to pay its materialmen. The Debtor argues that the contract provision in issue is ambiguous, and that the ambiguity as to whether payment of materialmen by the Debtor is a prerequisite to receipt of payment from the Defendant must be construed against the Defendant, as the draftsperson of the form contract. See, e.g., In re Leedy Mortgage Co., 76 B.R. 440, 445-46 (Bankr.E.D.Pa.1987); In re Tashjian, 72 B.R. 968, 976 (Bankr.E.D.Pa.1987); and In re United Nesco Container Corp., 68 B.R. 970, 974 (Bankr.E.D.Pa.1987). However, in order for this principle to arise, there must be a genuine ambiguity in the contract. As we stated in In re CG Realty Investments, Inc., 79 B.R. 249, 252 (Bankr.E.D.Pa.1987), “[a] court may not, by the medium of interpretation, effectively rewrite an unambiguous contract.” See also, e.g., In re Penn Central Transportation Co., 831 F.2d 1221, 1225-28 (3d Cir.1987); Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1009-14 (3d Cir.1980); Rusiski v. Pribonic, 511 Pa. 383, 390, 515 A.2d 507, 510 (1986); and Mears, Inc. v. National Basic Sensors, Inc., 337 Pa.Super. 284, 289-90, 486 A.2d 1335, 1338 (1985), rev’d on other grounds, 510 Pa. 61, 507 A.2d 32 (1986). There is also a category of cases involving contracting parties having grossly disparate bargaining power, where the courts have disallowed the draftsperson’s imposing an adhesion contract upon the other contracting party. In such a circumstance, the court may decline to enforce even an unambiguous contract. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 94-96, 92 S.Ct. 1983, 2001-02, 32 L.Ed.2d 556 (1972); and Tashjian, supra, 72 B.R. at 976. Here, however, there was no perceptible great gulf in the relative bargaining positions of the" }, { "docid": "1162121", "title": "", "text": "§ 547(a)(4) states that, for purposes of § 547, “a debt for a tax is incurred on the day when such tax is last payable without penalty, including any extention.” Obviously, if Congress meant to exempt tax payments for the scope of § 547, there would have been no reason to include any provision such as § 547(a)(4) in the Code. Collier so indicates, when it states that this language replaced earlier language which would have exempted tax claims from the scope of § 547. See 4 COLLIER ON BANKRUPTCY, H547.02[4], at 547-16 (15th ed. 1987). The IRS apparently does not dispute this point, as its Supplemental (and final) Memorandum of Law cites with approval to two cases in which payments to the IRS were deemed subject to 11 U.S.C. § 547, In re Cleveland Graphic Reproduction, Inc., 78 B.R. 819 (Bankr.N.D.Ohio 1987); and In re Morris, 53 B.R. 190 (Bankr.D.Or.1985). See also, e.g., Drabkin v. District of Columbia, 824 F.2d 1102 (D.C.Cir.1987); United States v. Air Florida, Inc., 56 B.R. 732 (S.D.Fla.1985); In re R & T Roofing Structures & Commercial Framing, Inc., 42 B.R. 908, 913-16 (Bankr.D.Nev.1984); Cf. In re Miller’s Auto Supplies, Inc., 75 B.R. 676 (Bankr.E.D.Pa.1987) (payments on state taxes avoidable as preferential transfers). - The second issue is whether payments for taxes are removed from the property of the Debtor’s estate and hence exempt from characterization as preferential transfers because such payments are supposed to be held as trust funds by debtors. We articulated our limited application of this theory in the IRS Trust Opinion in this very case, 70 B.R. at 105. See also In re Rimmer Corp., 80 B.R. 337, 338-39 (Bankr.E.D.Pa.1987); and 0Miller, supra. There, we concluded that only where a tax trust fund is actually established by the debtor and the taxing authority is able to trace funds segregated by the debtor in a trust account established for the purpose of paying the taxes in question would we conclude that such funds are not property of the debtor’s estate. We acknowledge several authorities holding to the contrary, i.e., that the mere" }, { "docid": "18781664", "title": "", "text": "higher Court says otherwise, § 523(a)(8) excepts from discharge, an educational loan guaranteed by a governmental unit or non-profit institution regardless of whether the loan is made directly to the student or to the student’s parent. Having found that § 523(a)(8) does apply to the case at bar, the next question which must be answered is whether the debt should be discharged for undue hardship. In In re Ford, 22 B.R. 442, 9 B.C.D. 715 (Bankr.W.D.N.Y.1982) this Court set forth the legislative history, case law definitions, and tests regarding the determination of undue hardship in educational loan discharge cases. This opinion will apply those principles and tests to the facts in the case at bar. Courts have applied three tests to determine whether the facts of a particular case constitute undue hardship. The three tests are: (i) the mechanical “undue hardship” test (focusing on debtor’s expenses and future financial resources); (ii) the good faith test (factors include debtor’s efforts to obtain employment, minimize expenditures, and maximize resources); and (iii) the underlying policy test (amount of student loan debt, percentage of indebtedness, and benefit from education). In re Clay, 12 B.R. 251, 254 (Bankr.N.D.Iowa 1981) citing In re Johnson, 5 B.C.D. 532, 544-45 (Bankr.E.D.Pa.1979). The first test is the mechanical test. In Ford, this Court held that with a monthly net income of $1,116 and monthly expenses of $1,330, to require the debtor to pay $35.53 in monthly installments as required by the student loan agreement would impose an economic deprivation and undue hardship on the debtor. In the case at bar, the debtors’ present monthly expenses are within twenty dollars of their monthly income. It must be noted here that the debtors’ expenses were unrealistic in a couple of areas. The debtors listed clothing expenses of only $15 a month, $180 a year is not going to adequately clothe a family of six. Likewise, the $15 a month for home repair and auto maintenance does not seem appropriate. One auto repair will deplete the $180 the debtors have budgeted. In addition to these observations, the debtor has incurred post-petition medical" }, { "docid": "9457333", "title": "", "text": "the security interest which undisputedly survived discharge, GECC urges that the clause in that Contract pertaining to recovery of costs incident to enforcing that security interest must have survived the Debtor’s discharge. It is important to note at the outset, before any discussion of why the law does not support GECC’s contention, that the Contract clause, quoted at page 606 supra, is at best ambiguous on the issue of whether it allows recovery of “reasonable attorney’s fees” incurred in a replevin action. It appears that it is only a debtor whose account is “returned for collection” of the unpaid balance who is liable for “reasonable attorney’s fees.” GECC is admittedly confined to an action to recover the goods, not collect the balance, by reason of § 524(a). As the Contract form was obviously drafted by GECC or its assignor, Levitz, this ambiguity must be construed against GECC. Cf. In re Flicker, 115 B.R. 809, 825-26 (Bankr.E.D.Pa.1990); In re Garnett, 99 B.R. 293, 296-97 (Bankr.E.D.Pa.1989); and In re Vitelli, 93 B.R. 889, 896-97 & n. 4 (Bankr.E.D.Pa.1988) (clause permitting mortgagee to recover attorney’s fees in collection action found not to justify fee recovery for services performed in bankruptcy court). Assuming arguendo that the Contract could be said to permit recovery of costs incurred solely in pursuit of replevin of goods, GECC’s contention must nevertheless be rejected because its replevin claim, including the claim for incidental costs and “reasonable attorney’s fees” provided in the Contract, was a pre-petition claim. GECC’s right to enforce its lien on the furniture survived discharge only because it did not involve the personal liability of the Debtor. The incidental claim for “special damages,” however, clearly represents an attempt to collect upon a personal liability of the Debtor and, as such, was discharged along with her other debts. The claim for “special damages” was a pre-petition claim regardless of the accuracy of GECC’s contention that it accrued post-petition. The Debtor’s default on her payments to GECC, beginning on October 15, 1989, gave rise to a possible claim by GECC for, inter alia, repossession of the furniture as well" }, { "docid": "14861112", "title": "", "text": "72 B.R. 968, 974-76 (Bankr.E.D.Pa.1987); and In re United Nesco Container Corp., 68 B.R. 970, 974 (Bankr.E.D.Pa.1987). Although our reference to § 506(b) in Jablonski may have been misplaced, we do not believe that our reference to that Code section in Tashjian was misplaced in the least. Although some reference to state law may be appropriate, we believe that claims for post-petition services are justifiable only if specifically authorized by the Code. Hence, we reiterate the following passage from Tashjian, 72 B.R. at 974-75, which we believe is totally accurate and applicable here: Our most recent decision wherein we addressed claims of a creditor for attorneys fees against a debtor was In re Jablonski, 70 B.R. 381, 388-90 (Bankr.E.D.Pa.1987). There, we held that a mortgagee, to be entitled to a claim of attorneys fees against a debtor-mortgagor, must establish that such fees are (1) allowable under the terms of § 506(b); (2) provided for in the parties’ agreement; (3) reasonable; and (4) allowable under pertinent state law. Id. at 388-89. However, in Jablonski, it must be recalled that we were addressing the issue of a creditor’s right, as specifically provided by contract, to claim attorneys fees incurred in pre-petition collection activity. We were not discussing the right of a creditor to enhance the sum allowable in a claim, per § 5606(b), by allowing fees, not specifically provided by contract, for services performed in the bankruptcy court. The latter subject, we addressed more directly in our previous decision in In re United Nesco Container Corp., 68 B.R. 970, 974 (Bankr.E.D.Pa.1987), where we stated as follows: “We agree with observations of the court In re Roberts, 20 B.R. 914, 920 (Bankr.E.D.N.Y.1982), that clauses in contracts providing creditors with attorneys’ fees in certain contingencies must be ‘strictly construed* or such ‘requests fly squarely into the teeth of the American rule’ that parties must generally bear their own counsel expenses. Accord, In re Frey, 34 B.R. 607, 611 (Bankr.M.D.Pa.1983) (per WOODSIDE, J.). Hence, consistent with the holding in Roberts, we are disinclined to hold that a contract clause providing that the obligor pay attorneys’" }, { "docid": "19815746", "title": "", "text": "Finance Co. v. Markman, 82 Pa.Super. 478 (1923); Bankers Commercial Security Co., Inc. v. Brennan and Levy, 75 Pa.Super. 199 (1920); Hecht v. Valkone Dye & F. Works, 66 Pa.Super. 97 (1917); Automobile Finance Co. v. S. C. Rodgers Carriage Co., 3 Pa.D. & C. 714 (Phila.C.P.1923); Auto Transit Co. v. Vicibradic, 26 Pa.Dist. 649 (Phila.C.P.1916); North German Lloyd v. Reading Bone Fertilizer Co., 21 Pa.Dist. 1110 (Berks C.P.1911). The issue of owner’s assent for services arises frequently in the area of automobile financing. A typical case is Midland Credit Co. v. White, supra, wherein the defendant lessor purchased his automobile under a bailment lease which had been assigned to Midland Credit Co. After an accident the defendant lessor left his automobile with co-defendant garage for repairs. While the automobile was in possession of the garage for repairs made at the lessor’s request, the lessor defaulted on the lease and Midland brought an action in replevin against the garage for the vehicles return. The Court held that the garage held no lien on the vehicle as against the lessee unless the lessee had assented to the repairs made by defendant garage. The most recent case on the subject is Welded Tube Company of America v. Phoenix Steel Corp., 377 F.Supp. 74 (E.D.Pa.1974), aff’d and remanded, 512 F.2d 342 (3d Cir. 1975), wherein the plaintiff steel fabricator asserted a possessory lien upon the steel of defendant steel maker which plaintiff held under a re-, quirements contract after the contract had been terminated. The Court held that as to the plaintiff’s claim for storage, handling, and preparation costs of the raw steel, there was no possessory lien under the common law in Pennsylvania since the contract between the parties did not contemplate charges to the buyer for these expenses. The scope of a lien or its very existence is predicated upon the existence of some agreement between the parties either expressed or implied. Id. at 81 n. 2. While there is no Pennsylvania authority directly on point, courts in other states have construed the parameters of the common law possessory lien consistently" }, { "docid": "10977745", "title": "", "text": "In re Borbidge, 90 B.R. 728, 733 (Bankr.E.D.Pa.1988) (FOX, J.). Furthermore, the fiduciary capacity in which the Debtor is acting must arise from an express trust and not from a trust ex maleficio which arises solely due to the fact that the Debtor’s wrongful act occasioned the indebtedness. See Bergman, supra, 103 B.R. at 667; James, supra, 94 B.R. at 352; In re Ramonat, 82 B.R. 714, 719 (Bankr.E.D.Pa.1988) (TWARDOWSKI, CH. J.); and In re Lane, 76 B.R. 1016, 1022 (Bankr.E.D.Pa.1987). However, the requisite “express trust” may arise as a matter of law as well as from a particular trust instrument. See In re Long, 774 F.2d 875, 878 (8th Cir.1985); and Bergman, supra, 103 B.R. at 668-70. 6. The relationship of the parties was, at all times prior to December 16, 1985, and at all times subsequent to February 28, 1986, governed solely by the Lease of October 11, 1985. The Agreement of Sale expired on its own terms when settlement did not occur on February 28, 1986. Contrary to the arguments of the Debtor, the Agreement of Sale must be construed as containing an enforceable mortgage contingency clause even though the type of mortgage, amount, and term were not filled in on the blank spaces on the form’s clause providing for same. We would conclude that such a clause was excluded from a form on which it appears only if it were crossed out. It must be recalled that the printed Agreement of Sale form was presented by the Debtor-broker to totally unsophisticated buyers and that therefore any ambiguities in this contract must be construed against the party supplying the contract form, i.e., the Debtor. See, e.g., In re Franks, 95 B.R. 346, 350-51 (Bankr.E.D.Pa.1989); In re Jordan, 91 B.R. 673, 678-79 (Bankr.E.D.Pa.1988); and In re United Nesco Container Corp., 68 B.R. 970, 974 (Bankr.E.D.Pa.1987). An interpretation of this contract which excluded the mortgage contingency would appear clearly contrary to the parties’ course of dealing and unconscionable, as well as constituting an impermissible, sharp interpretation of an ambiguity in the contract in favor of the Debtor. 7. Under" }, { "docid": "13601655", "title": "", "text": "over to Enterprise for collection. However, as no evidence has been offered indicating and/or liquidating costs and attorney’s fees necessitated as a result of defendant’s activities, no award can be entered at this time. Pursuant to 11 U.S.C. § 362(h), punitive damages may be awarded when the conduct in violation of the automatic stay was in bad faith. In re Atlantic Business and Community Corp., 901 F.2d at 320. Plaintiff merely requests that this court award it $10,000.00 but, again, provides an insubstantial basis for this particular amount. Certainly $10,000.00 is “a nice round number”; however, awards can not be entered based upon mere speculation. Debtor also alleges in its complaint that defendant has refused to surrender certain vehicles belonging to debtor and claims that said refusal also violates that automatic stay. As little specificity was offered at trial, then little specificity can be contained in an Order. We do wish it to be made abundantly clear to the defendant that the motor vehicles titled in debtor’s name are in fact estate assets. Should it be learned that defendant has in fact retained possession of estate assets and/or is putting same to his personal use, then further action may be pursued in this court or other courts having criminal, as well as civil, jurisdiction. B.) Motion No. 90-0919M Defendant alleges at Motion No. 90-0919M that he has a perfected mechanic’s lien on debtor’s equipment in the amount of $14,698.26 for repairs made to debtor’s vehicles and a garage keeper’s lien of $21,-408.00 for storage of debtor’s vehicles. He requests a determination that his liens are prior to any interest that BONE has in the equipment and seeks relief from the automatic stay so that he might initiate foreclosure proceedings against the equipment. Defendant took possession of certain vehicles and equipment from another party at debtor’s request late in late-1989 and/or early-1990. At debtor’s request, defendant made repairs to the vehicles so as to put them in running order and thereby use them in his operations. Debtor avers, and the court accepts as fact, that defendant was paid for said repairs." }, { "docid": "13164539", "title": "", "text": "finding that Todd’s negligence and breach of warranty were a proximate cause of Auto’s damages, for which Todd was primarily liable. Todd II, supra, at 410. That holding is now the law of the case. We conclude that Todd’s resulting shared obligation with Turbine Service and Gonzales is in solido to the extent of the limits of the red-letter clause or the amount Auto can compel any of the repairers to pay. See generally Narcise v. Illinois Central Gulf R.R., 427 So.2d 1192, 1195 & n. 4 (La.1983) (“While one item of damages may be recoverable against one debtor and not the other, the parties are liable in solido as to every item for which plaintiff can compel payment from either.”). D. “Savings Made Possible” Todd’s final argument is that the district court erred in offsetting the balance due to Todd on the repair contract from Auto’s total recovery. Todd argues that, because all three repairers are liable to Auto in solido, offsetting resulted in a windfall to Turbine Service and Gonzales at Todd’s expense. We find no error. In its original decision, the district court determined that the measure of damages for breach of contract should govern in this case. Todd I, supra, at 1304. We agreed on appeal. Todd II, supra, at 412. Under this measure, Auto was entitled to be put in the same position it would have occupied had the repair contract been performed. Damages were therefore computed by adding (1) the cost of repairs to have the LP turbine placed in the condition contracted for, (2) necessary expenses during down time of the vessel, (3) loss of profits during down time, and (4) costs and attorney’s fees. Todd I, supra, at 1304. An award of this sum, however, would have placed Auto in a better position than it would have been in if the contract had not been breached, because the breach discharged Auto’s duty to pay the balance due under the contract. Thus, the amount of the contract price that had not yet been paid was deducted from the damages as “savings made possible.”" }, { "docid": "18781665", "title": "", "text": "student loan debt, percentage of indebtedness, and benefit from education). In re Clay, 12 B.R. 251, 254 (Bankr.N.D.Iowa 1981) citing In re Johnson, 5 B.C.D. 532, 544-45 (Bankr.E.D.Pa.1979). The first test is the mechanical test. In Ford, this Court held that with a monthly net income of $1,116 and monthly expenses of $1,330, to require the debtor to pay $35.53 in monthly installments as required by the student loan agreement would impose an economic deprivation and undue hardship on the debtor. In the case at bar, the debtors’ present monthly expenses are within twenty dollars of their monthly income. It must be noted here that the debtors’ expenses were unrealistic in a couple of areas. The debtors listed clothing expenses of only $15 a month, $180 a year is not going to adequately clothe a family of six. Likewise, the $15 a month for home repair and auto maintenance does not seem appropriate. One auto repair will deplete the $180 the debtors have budgeted. In addition to these observations, the debtor has incurred post-petition medical bills as a result of his kidney disease, including a $750 debt to Strong Memorial Hospital. It is not likely that Mr. Feenstra’s future income will be greater than his current income. In fact, given Mr. Feenstra’s disease, it is very likely that his income will decrease as his disease progresses and his ability to stand on his feet and move heavy barrels declines. Also, as the disease gets worse, the medical expenses will necessarily increase. In view of the debtors’ underestimated and conservative listing of their expenses, the probability of a decrease in their income and increase in their expenses if or when the disease worsens, it is obvious that the debtors’ current income would not be sufficient to support the debtor and his dependents at a minimal standard of living if the repayment of the $2,604.96 plus interest educational loan obligation is added to their current monthly expenses. Ergo, the repayment of the educational loan would impose an economic deprivation and undue hardship on the debtors and their dependents. “Such deprivation is clearly" }, { "docid": "19246010", "title": "", "text": "of this Court in In re Fries, 68 B.R. 676, 682-85 (Bankr.E.D.Pa.1986), and, to a lesser extent, by us in In re Gathright, 67 B.R. 384, 391-92 & n. 8 (Bankr.E.D.Pa.1986), appeal dismissed, 71 B.R. 343 (E.D.Pa., 1987). We believe that the objecting party, to succeed, must either present some evidence or, in egregious cases, point out to us a situation which represents a clear abuse on its face. However, if such an objection is so raised and supported by evidence on the record, then the burden shifts to the Debtor, as the party with most access to proof on the point, to show that the budget submitted is reasonable and that the objection lacks merit. Cf. In re Furlow, 70 B.R. 973, 977-78 (Bankr.E.D.Pa.1987). Collier strongly suggests that the Debtor should not be required to pay all of her excess income to the Trustee, stating as follows: It is also clear from the legislative history that the amount necessary for support of the debtor and the debtor’s dependents must include a “cushion” for unexpected expenses. Many courts, in considering whether a plan is feasible ... have noted that a realistic budget must include some margin for such expenses. 5 COLLIER, supra, ¶ 1325.-08[4][b], at 1325-49. While we are unwilling to set down a rule that a debtor must always provide such a “cushion” in a Plan, we will give some leeway to a debtor who, like the Debtor here, provides for no cushion, especially since she has two very young children who are dependent upon her, and hence there appears a strong likelihood that a need for a “contingency fund” will arise. We also note that the Debtor’s budget includes no luxuries, Spartan allowances for food, utilities, transportation, and recreation, and no budget for such apparent necessities as home repairs, a newspaper subscription, or any sort of life insurance. We are thus extremely uncomfortable about the prospect of compelling the Debtor to pay more than the $96.57 which she paid through January, 1987, which leaves a balance of what we consider a minimal amount of $97.63 for the items" } ]

[ { "docid": "5579662", "title": "", "text": "existing technological processes, such that it did not recite an abstract idea. 837 F.3d at 1315-16. Here, the Asserted Claims are not directed to specific rules that improve a technological process. Again, the claims recite the collection of financial data from third parties, the storing of that financial data, linking proffered credit cards to the financial data, and allowing access to a transit system based on the financial data. The claims are not directed to a combined order of specific rules that improve any technological process, but rather invoke computers in the collection and arrangement of data. Claims with such character do not escape the abstract idea exception under Alice step one. See RecogniCorp, 855 F.3d at 1327. SSI repeatedly emphasizes that we nevertheless should not find the Asserted Claims directed to an abstract idea because they apply to a particular, concrete field—namely, mass transit. See Appellant’s Br. 38 (“Anyone who has ever passed through a terminal or entry gate for their local subway—or who has slammed a hip into a locked turnstile— knows that such terminals are the antithesis of ‘abstract.’ ”); see id. at 43-44. But, as we have said before, “merely limiting the field of use of the abstract idea to a particular ... environment does not render the claims any less abstract.” Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016); Capital One Fin., 850 F.3d at 1340 (same). Indeed, that the steps recited in the Asserted Claims are “necessarily” performed “in the physical, rather than purely conceptual, realm ... is beside the point.” Alice, 134 S.Ct. at 2358 (internal quotation marks and citation omitted). SSI also contends ' that the District Court failed to appreciate that, because the Patents-in-Suit disclose inventions claiming “speedier solutions,” the Asserted Claims do not fall within the abstract ideas realm. Appellant’s Br. 51. SSI’s argument is misplaced here because we consider the application of an abstract idea under Alice step two, not Alice step one. See, e.g., Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1315 (Fed. Cir. 2016). SSI’s reliance on" } ]

[ { "docid": "1468739", "title": "", "text": "components to the claimed idea necessarily turns an abstraction ■ into something concrete.” Ultramercial, 772 F.3d at 715. At step one, prior art plays no role in a court’s analysis. See, e.g., Enfish, LLC v. Microsoft Corp., 56 F.Supp.3d 1167, 1173-75 (C.D.Cal.2014). But see McRO, Inc. v. Valve Corp., No. SACV 13-1874-GW(FFMx), 2014 WL 4772200, at *9 (C.D.Cal. Sept. 22, 2014) (unpublished). If an invention is directed toward a patent-ineligible abstract idea, second, the Court must “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent eligible application.” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1297-98). Those additional elements “must be more than ‘well-understood, routine, conventional activity.’ ” Ultramercial, 772 F.3d at 715 (quoting Mayo, 132 S.Ct. at 1298). This second step is “a search for an ‘inventive concept’ — ie., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’ ” Id. (alteration and emphasis in original) (quoting Mayo, 132 S.Ct. at 1294). Yet, “transformation into a patent-eligible application requires ‘more than simply stat[ing] the [abstract idea] while adding the words ‘apply it.’ ” Alice, 134 S.Ct. at 2357 (alterations in original) (quoting Mayo, 132 S.Ct. at 1294). Moreover, “the prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’ or adding ‘insignificant postsolution activity,’ ” Bilski, 561 U.S. at 610-11, 130 S.Ct. 3218 (quoting Diamond v. Diehr, 450 U.S. 175, 191-92, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981)), and the narrowness of an abstract idea does not render patentable an otherwise patent-ineligible idea, see buySAFE, 765 F.3d at 1353 (citing Mayo, 132 S.Ct. at 1303). Nor does “the mere recitation of a generic computer ... transform a patent-ineligible abstract idea into a patent-eligible invention.” Alice, 134 S.Ct. at 2358. 2. The Validity of the Patents-in-Suit The Court will now consider whether each of the patents-in-suit claims patent-eligible" }, { "docid": "19597703", "title": "", "text": "through various financial transactions. Id. After determining that those claims were directed to the abstract idea of intermediated settlement, the Court considered whether the recitation of a generic computer added \"significantly more\" to the claims. Id. at 2357. Critically, the Court did not consider whether it was well-understood, routine, and conventional to execute the claimed intermediated settlement method on a generic computer. Instead, the Court only assessed whether the claim limitations other than the invention's use of the ineligible concept to which it was directed were well-understood, routine and conventional. Id. at 2359-60. Our precedent has consistently employed this same approach. If a claim's only \"inventive concept\" is the application of an abstract idea using conventional and well-understood techniques, the claim has not been transformed into a patent-eligible application of an abstract idea. See, e.g., Berkheimer , 881 F.3d at 1370 (holding claims lacked an inventive concept because they \"amount to no more than performing the abstract idea of parsing and comparing data with conventional computer components\"); Affinity Labs of Tex., LLC v. DIRECTV, LLC , 838 F.3d 1253, 1262 (Fed. Cir. 2016) (holding a claim lacked an inventive concept because it \"simply recites the use of generic features ... as well as routine functions ... to implement the underlying idea\"); cf. Ariosa , 788 F.3d at 1379-80 (rejecting the argument that a newly discovered natural phenomenon can supply an inventive concept). Here, the only alleged unconventional feature of BSG Tech's claims is the requirement that users are guided by summary comparison usage information or relative historical usage information. But this simply restates what we have already determined is an abstract idea. At Alice step two, it is irrelevant whether considering historical usage information while inputting data may have been non-routine or unconventional as a factual matter. As a matter of law, narrowing or reformulating an abstract idea does not add \"significantly more\" to it. See SAP Am., Inc. v. InvestPic , LLC, No. 2017-2081, slip op. at 14, 898 F.3d 1161, 1168, 2018 WL 3656048, *6 (Fed. Cir. Aug. 2, 2018) (\"What is needed is an inventive concept in" }, { "docid": "3758431", "title": "", "text": "upon the [ineligible concept] itself.’ ” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1294) (alteration in original). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. at 2357 (quoting Mayo, 132 S.Ct. at 1297) (alterations in original). While Alice made clear that “[t]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent eligible invention[,]” id. at 2358, it is also clear that use of a computer does not automatically make a claim patent ineligible under § 101. .The ultimate question of patent eligibility is whether the patent claims an “inventive concept” such that the elements of the claim transform the abstract idea into a patent eligible invention:. In Diehr, the Supreme Court found a computer implemented process using a “well-known” mathematical formula for curing rubber was patent eligible. That was so because considering the claim elements as a whole, the claim in Diehr contained “additional steps” that “transformed the process into an inventive application” and “improved an existing technological process[.]” Alice, 134 S.Ct. at 2358 (citations omitted). A software pátent can be eligible under § 101 when it claims a solution to e£ problem necessarily rooted in computer technology, and does not merely recite a conventional business or economic practice known from a pre-Internet world that is simply implemented on a generic computer performing generic computer functions; DDR Holdings, LLC v. Hotels.com, L.P. 773 F.3d 1245, 1259 (Fed.Cir.2014) (“[T]he claimed solution amounts to an inventive concept for resolving this particular Internet-centric problem; rendering the claims patent eligible.”). In DDR Holdings, the patents were directed to systems and methods of generating a composite web page that combined visual elements of a host website with the content of a third-party merchant. Id. at 1248. The patents addressed the problem of retaining visitors to a host website which, as explained in the specification, would be transported away from the host website if the website visitor clicked on an advertisement which activated a hyperlink to" }, { "docid": "2594539", "title": "", "text": "by Affinity is Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). As in DDR Holdings, the focus of the claims in Enfish was on “an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.” Id. at 1336. In this case, the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter. See Elec. Power Grp., op. at 1354; see also McRo, Inc. v. Bandai Namco Games Am. Inc., No. 15-1080, 837 F.3d 1299, 1314, 2016 WL 4896481, at *8-9 (Fed. Cir. Sep. 13, 2016) (claims held patent-eligible because they made “a specific asserted improvement in computer animation”). B In applying step two of the Mayo/Alice analysis, our task is to “determine whether the claims do significantly more than simply describe [the] abstract method” and thus transform the abstract idea into patentable subject matter. Ultramercial, 772 F.3d at 715. We look to see whether there are any “additional features” in the claims that constitute an “inventive concept,” thereby rendering the claims eligible for patenting even if they are directed to an abstract idea. Alice, 134 S.Ct. at 2357. Those “additional features” must be more than “well-understood, routine, conventional activity.” Mayo, 132 S.Ct. at 1298; Ultramercial, 772 F.3d at 715. Upon examining claim 1 and the specification of the ’379 patent, we find no “inventive concept” that transforms the abstract idea of out-of-region delivery of regional broadcasting into a patent-eligible application of that abstract idea. The claim simply recites the use of generic features of cellular telephones, such as a storage medium and a. graphical user interface, as well as routine functions, such as transmitting and receiving signals, to implement the underlying idea. That is not enough. As the Supreme Court stated in Alice, “generic computer implementation” is insufficient to transform a patent-ineligible abstract idea into a patent-eligible invention. Alice, 134 S.Ct. at 2352, 2357. More generally," }, { "docid": "9282539", "title": "", "text": "Cty. of Orange , 682 F.3d 1126, 1131 (9th Cir. 2012). Patent eligibility under 35 U.S.C. § 101 is a question of law that may contain underlying issues of fact. Berkheimer v. HP Inc ., 881 F.3d 1360, 1365 (Fed. Cir. 2018). We review the district court's ultimate conclusion on patent eligibility de novo. Id . Section 101 allows inventors to obtain patents on \"any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.\" 35 U.S.C. § 101. However, \"this provision contains an important implicit exception:\" an inventor may not patent laws of nature, natural phenomena, or abstract ideas. Alice , 134 S.Ct. at 2354. To assess whether a patent claim violates this exception to the terms of § 101, the Supreme Court has set forth a two-step framework, in which a court determines: (1) whether the claim is \"directed to a patent-ineligible concept,\" i.e., a law of nature, natural phenomenon, or abstract idea, and, if so, (2) whether the elements of the claim, considered \"both individually and 'as an ordered combination,' \" add enough to \" 'transform the nature of the claim' into a patent-eligible application.\" Id. at 2355 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc. , 566 U.S. 66, 78, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012) ). In the context of an abstract-idea challenge to a patent claim, those two steps are typically understood as the \"abstract idea\" step and the \"inventive concept\" step. See Affinity Labs of Tex., LLC v. DIRECTV, LLC , 838 F.3d 1253, 1257-58 (Fed. Cir. 2016). While each step involves its own separate inquiry, we have explained that they may \"involve overlapping scrutiny of the content of the claims.\" Elec. Power Grp., LLC v. Alstom S.A. , 830 F.3d 1350, 1353 (Fed. Cir. 2016). A. Alice Step 1: Abstract Idea The judicial exception in patent law against claiming abstract ideas dates as far back as 1840. See Wyeth v. Stone , 30 F. Cas. 723 (C.C.D. Mass. 1840). In Wyeth , the patent described a particular apparatus for cutting ice, as well as" }, { "docid": "2594540", "title": "", "text": "patentable subject matter. Ultramercial, 772 F.3d at 715. We look to see whether there are any “additional features” in the claims that constitute an “inventive concept,” thereby rendering the claims eligible for patenting even if they are directed to an abstract idea. Alice, 134 S.Ct. at 2357. Those “additional features” must be more than “well-understood, routine, conventional activity.” Mayo, 132 S.Ct. at 1298; Ultramercial, 772 F.3d at 715. Upon examining claim 1 and the specification of the ’379 patent, we find no “inventive concept” that transforms the abstract idea of out-of-region delivery of regional broadcasting into a patent-eligible application of that abstract idea. The claim simply recites the use of generic features of cellular telephones, such as a storage medium and a. graphical user interface, as well as routine functions, such as transmitting and receiving signals, to implement the underlying idea. That is not enough. As the Supreme Court stated in Alice, “generic computer implementation” is insufficient to transform a patent-ineligible abstract idea into a patent-eligible invention. Alice, 134 S.Ct. at 2352, 2357. More generally, “simply appending conventional steps specified at a high level of generality” to an abstract idea does not make that idea patentable, Mayo, 132 S.Ct. at 1300. The ’379 patent does not provide an inventive solution to a problem in implementing the idea of remote delivery of regional broadcasting; it simply recites that the abstract idea of remote delivery will be implemented using the conventional components and functions generic to cellular telephones. Addressing the same general issue, this court in Ultmmercial considered whether the steps set forth in the claims in that case embodied an inventive concept sufficient “to ‘transform’ the claimed abstract idea into patent-eligible subject matter.” 772 F.3d at 715 (citing Alice, 134 S.Ct. at 2357). The court noted that the sequence of steps did not “do significantly more than simply describe [the] abstract method,” id. and that they were simply “conventional steps, specified at a high level of generality,” id. at 716 (quoting Alice, 134 S.Ct. at 2357). The court added that the fact that some of those steps had not previously been" }, { "docid": "900001", "title": "", "text": "F.3d 1245, 1259 (Fed. Cir. 2014). Claim 1 of the ’303 patent contains no similar inventive concept. Nothing “transforms” the abstract idea of encoding and decoding into patent-eligible subject matter. Alice, 134 S.Ct. at 2357. Nor does the presence of a mathematical formula dictate otherwise. Claims that are directed to a non-abstract idea are not rendered abstract simply because they use a mathematical formula. Diehr, 450 U.S. at 187, 101 S.Ct. 1048. But the converse is also true: A claim directed to an abstract idea does not automatically become eligible merely by adding a mathematical formula. See, e.g., Clarilogic, Inc. v. FormFree Holdings Corp., — Fed. Appx. -, 2017 WL 992528, at *3 (Fed. Cir. Mar. 15, 2017). As we explained above, claim 1 is directed to the abstract idea of encoding and decoding. The addition of a mathematical equation that simply changes the data into other forms of data cannot save it. In BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, the patent owner “alleged that an inventive concept can be found in the ordered combination of claim limitations that transform the abstract idea of filtering content into a particular, practical application of that abstract idea.” 827 F.3d 1341, 1352 (Fed. Cir. 2016). We found the allegation sufficient to survive a motion to dismiss, where all facts had to be construed in the patent owner’s favor. Id. Here, RecogniCorp has not alleged a particularized application of encoding and decoding image data. Indeed, claim 1 does not even require a computer; the invention can be practiced verbally or with a telephone. J.A. 28 (col. 4 ll. 59-63); J.A. 32 (col. 11 ll. 53-59). Independent claim 36 claims the use of a computer, but it does exactly what we have warned it may not: tell a user to take an abstract idea and apply it with a computer. Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1332 (Fed. Cir. 2015). In sum, the claims of the ’303 patent lack an inventive concept that transforms the claimed subject matter from an abstract idea into a patent-eligible application. Alice," }, { "docid": "5538548", "title": "", "text": "manner of TLI, 823 F.3d at 613. Claim 4 adds the abstract concept of storing, and claims 6-7 add the abstract concept of editing. Mr. Berkheimer argues that the claims are not abstract because the “parsing” limitation roots the claims in technology and transforms the data structure from source code to object code. Limiting the invention to a technological environment does “not make an abstract concept any less abstract under step one.” Intellectual Ventures I, 850 F.3d at 1340. That the parser transforms data from source to object code does not demonstrate non-abstractness without evidence that this transformation improves computer functionality in some way. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1258 (Fed. Cir. 2017) (“[W]e must ... ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea.” (internal quotations omitted) ); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016) (“[T]he first step in the Alice inquiry in this case asks whether the focus of the claims [was] on the specific asserted improvement in computer capabilities ... or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool”). No such evidence exists on this record. Indeed, Mr. Berkheimer admitted that parsers had existed for years prior to his patent. J.A. 1106. Because the claims are directed to an abstract idea, we proceed to the second step of the Alice inquiry. At step two, we “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent eligible application.” Alice, 134 S.Ct. at 2355 (quoting Mayo, 566 U.S, at 78-79, 132 S.Ct. 1289). The second step of the Alice test is satisfied when the claim limitations “involve more than performance of ‘well-understood, routine, [and] conventional activities previously known to the industry.’ ” Content Extraction, 776 F.3d at 1347-48 (quoting Alice, 134 S.Ct. at 2359). The question of whether a claim element or combination of elements is well-understood, routine and conventional" }, { "docid": "900000", "title": "", "text": "See Alice, 134 S.Ct. at 2357 (“[W]e must examine the elements of the claim to determine whether it contains an ‘inventive concept.’” (emphasis added)); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016) (“The § 101 inquiry must focus on the language of the Asserted Claims themselves.”). RecogniCorp argues that the claims of the ’303 patent contain an inventive concept sufficient to render them patent-eligible. Specifically, it contends that the combination of claim elements, i.e., the “particular encoding process using the specific algorithm disclosed” in the patent “transforms” the abstract idea into a patentable invention. RecogniCorp also points out the “facial feature element codes” and “pictorial entity symbols” disclosed in the ’303 patent claims. We find that these claim elements do not transform the'nature of the ’303 patent claims into a patent-eligible application. McRO, 837 F.3d at 1312. In DDR Holdings, LLC v. Hotels.com, L.P., we found that the patent claims satisfied Alice step two because “the claimed solution amounts to an inventive concept for resolving [a] particular Internet-centric problem.” 773 F.3d 1245, 1259 (Fed. Cir. 2014). Claim 1 of the ’303 patent contains no similar inventive concept. Nothing “transforms” the abstract idea of encoding and decoding into patent-eligible subject matter. Alice, 134 S.Ct. at 2357. Nor does the presence of a mathematical formula dictate otherwise. Claims that are directed to a non-abstract idea are not rendered abstract simply because they use a mathematical formula. Diehr, 450 U.S. at 187, 101 S.Ct. 1048. But the converse is also true: A claim directed to an abstract idea does not automatically become eligible merely by adding a mathematical formula. See, e.g., Clarilogic, Inc. v. FormFree Holdings Corp., — Fed. Appx. -, 2017 WL 992528, at *3 (Fed. Cir. Mar. 15, 2017). As we explained above, claim 1 is directed to the abstract idea of encoding and decoding. The addition of a mathematical equation that simply changes the data into other forms of data cannot save it. In BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, the patent owner “alleged that an inventive concept can be found in" }, { "docid": "21804457", "title": "", "text": "environment in which to carry out the abstract idea”). The claim is therefore directed to an abstract idea. Because the claim is directed to an abstract idea, we proceed to Alice step two to determine whether the representative claims disclose a saving inventive concept. 2. Alice Step Two In Alice step two, we consider the elements of the claim, both individually and as an ordered combination, to assess whether the additional elements transform the nature of the claim into a patent-eligible application of the abstract idea. Content Extraction & Transmission LLC v. Wells Fargo Bank, 776 F.3d 1343, 1347 (Fed. Cir. 2014). Merely reciting the use of a generic computer or adding the words “apply it with a computer” cannot convert a patent-ineligible abstract idea-into a patent-eligible invention. Alice, 134 S.Ct. at 2358; Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1332 (Fed. Cir. 2015). To save a patent at step two, an inventive concept must be evident in the claims. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017). The district court found no saving inventive concept in claim 1 of the ’187 patent. While acknowledging that the specification of the ’187 patent describes a system architecture as a technological innovation, the district court concluded that the claim does not recite this architecture, even taking into account Two-Way Media’s proposed constructions. Two-Way Media, 2016 WL 4373698, at *5. We agree with the district court, The main problem that Two-Way Media cannot overcome is that the claim—as opposed to something purportedly described in the specification—is missing an inventive concept. Recogni Corp, 855 F.3d at 1327. While the specification may describe a purported innovative “scalable architecture,” claim 1 of the 187 patent does not. J.A. 103 at col. 2 11. 1-5. The lack of an inventive concept recited in claim 1 precludes eligibility here. For example, the claim refers to certain data “complying with the specifications of a network communication protocol” and the data being routed in response to one or more signals from a user, without specifying the rules forming the communication protocol or" }, { "docid": "16978791", "title": "", "text": "can be seen—what prior cases were about and which way they were decided.” Majority Op. at 1294. In application, the majority’s approach involves the mechanical comparison of the asserted claims in this case to the claims at issue in some, but not all, of the cases where we have addressed patent eligibility after the Supreme Court’s decision in Alice Corp. v. CLS Bank Int'l — U.S.-, 134 S.Ct. 2347, 2355, 189 L.Ed.2d 296 (2014). The majority avoids determining whether the asserted claims are directed to an abstract idea, or even identifying what the underlying abstract idea is. I believe that approach to section 101 is contrary to the Supreme Court’s direction in Alice, 134 S.Ct. at 2355 (“First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts.”). Declining to engage in the step 1 inquiry also ignores and undermines this court’s holdings in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016), McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir.2016), Affinity Labs of Texas, LLC v. DirecTV, LLC, 838 F.3d 1253 (Fed. Cir.2016), and Affinity Labs of Texas, LLC v. Amazon.com Inc., 838 F.3d 1266 (Fed. Cir.2016). The majority also relies on the specification to import innovative limitations into the claims at issue. For each of the four patents at issue, the majority’s eligibility determination rests on the use of a “distribution architecture.” As explained below, however, this limitation is insufficient to satisfy Alice step two. Indeed, that limitation- does not exist in all of the claims at issue. This contravenes the fundamental principal that the section 101 inquiry is about whether the claims are directed to a patent-eligible invention, not whether the specification is so directed. See Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138 (Fed.Cir. 2016) (“The § 101 inquiry must focus on the language of the Asserted Claims themselves.... complex details from the specification cannot save a claim directed to an abstract idea that recites generic computer parts.”) (citing Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir." }, { "docid": "23356231", "title": "", "text": "a computer, does not confer patent eligibility); Bilski v. Kappos, 561 U.S. 593, 612, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010) (“[L]imiting an abstract idea to one field of use ... d[oes] not make the concept patentable.”). If we determine that the patent is drawn -to an abstract idea or otherwise ineligible subject matter, at a second step we ask whether the remaining elements, either in isolation or combination with the non-patent-ineligible elements, are sufficient to “ ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 134 S.Ct. at 2358 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., — U.S. -, 132 S.Ct. 1289, 1297, 182 L.Ed.2d 321 (2012)). Put another way, there must be an “inventive concept” to take the claim into the realm of patent-eligibility. Id. at 2355. A simple instruction to apply an abstract idea on a computer is not enough. Alice, 134 S.Ct. at 2358 (“[M]ere recitation of a generic computer cannot transform a patent-ineligible idea into a patent-eligible invention. Stating an abstract idea ‘while adding the words “apply it” is not enough for patent eligibility.’ ” (quoting Mayo, 132 S.Ct. at 1294)). Nor, in addressing the second step of Alice, does claiming the improved speed or efficiency inherent with applying the abstract idea on a computer provide a sufficient inventive concept. See Bancorp Servs., LLC v. Sun Life Assurance Co. of Can., 687 F.3d 1266, 1278 (Fed.Cir.2012) (“[T]he fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter.”); CLS Bank, Int’l v. Alice Corp., 717 F.3d 1269, 1286 (Fed.Cir.2013) (en banc) aff'd, — U.S. -, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014) (“[Sjimply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility.” (citations omitted)). A The '137 patent generally relates to budgeting, or, as the district court described it, “utilizing] user-selected pre-set limits on spending that are stored in a database that, when reached, communicates a notification to the" }, { "docid": "21804453", "title": "", "text": "Thales Visionix Inc. v. United States, 850 F.3d 1343, 1349 (Fed. Cir. 2017); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims are determined to be directed to an abstract idea, we next consider whether the claims contain an “inventive concept” sufficient to “transform the nature of the claim into a patent-eligible application.” Alice, 134 S.Ct. at 2355 (internal quotation marks omitted). We conclude that the ’187 patent, ’005 patent, ’622 patent, and ’686 patent are patent ineligible under § 101. We discuss each in turn. A. ’187 Patent and ’005 Patent 1. Alice Step One Under Alice step one, “the claims are considered in their entirety to ascertain whether their character as a whole is directed to excluded subject matter.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015). We look to whether the claims in the patent focus on a specific means or method, or are instead directed to a result or effect that itself is the abstract idea and merely invokes generic processes and machinery. McRO, 837 F.3d at 1314. Claims directed to generalized steps to be performed on a computer using conventional computer activity are not patent eligible. Internet Patents, 790 F.3d at 1348-49. The district court found that claim 1 of the ’187 patent, which is representative of all of the claims of the ’187 patent and ’005 patent, is directed to the abstract idea of (1) sending information, (2) directing the sent information, (3) monitoring the receipt of the sent information, and (4) accumulating records about receipt of the sent information. Two-Way Media, 2016 WL 4373698, at *5. Two-Way Media argues that the district court erred by oversimplifying the claim and ignoring claim limitations present in its proposed constructions. We disagree. Claim 1 recites a method for routing information using result-based functional language. The claim requires the functional results of “converting,” “routing,” “controlling,” “monitoring,” and “accumulating records,” but does not sufficiently describe how to achieve these results in a non-abstract way. Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258-59" }, { "docid": "2594541", "title": "", "text": "“simply appending conventional steps specified at a high level of generality” to an abstract idea does not make that idea patentable, Mayo, 132 S.Ct. at 1300. The ’379 patent does not provide an inventive solution to a problem in implementing the idea of remote delivery of regional broadcasting; it simply recites that the abstract idea of remote delivery will be implemented using the conventional components and functions generic to cellular telephones. Addressing the same general issue, this court in Ultmmercial considered whether the steps set forth in the claims in that case embodied an inventive concept sufficient “to ‘transform’ the claimed abstract idea into patent-eligible subject matter.” 772 F.3d at 715 (citing Alice, 134 S.Ct. at 2357). The court noted that the sequence of steps did not “do significantly more than simply describe [the] abstract method,” id. and that they were simply “conventional steps, specified at a high level of generality,” id. at 716 (quoting Alice, 134 S.Ct. at 2357). The court added that the fact that some of those steps had not previously been employed in the art was not- sufficient, standing alone, “to confer patent eligibility upon the claims at issue.” Id. at 716. Affinity asserts that the use of a down-loadable application - for presenting a graphical user interface on a cellular telephone capable of listing contents for streaming was novel as of the priority date of the patent. Even assuming that is true, it does not avoid the problem of abstractness. The essential advance is not in the process of downloading applications, but only in the content of this particular application, and that is nothing but a functionally described display of information. That description does not cross out of the abstract idea category. Elec. Power Grp., op. at 1352, There is no further specification of a particular technology for getting the defined content displayed. Thus, the user-downloadable application does not. constitute an inventive concept sufficient to render the claims patent-eligible. This court employed similar analysis in Content Extraction & Transmission LLC v. Wells Fargo Bank, National Ass’n, 776 F.3d 1343 (Fed. Cir. 2014). That case involved" }, { "docid": "21804456", "title": "", "text": "example, Two-Way Media proposed a construction of “controlling the routing of the stream of packets in response to selection signals received from the users” as “directing a portion of the routing path taken by the stream' of packets from one of a designated group of intermediate computers to the user in response to one or more signals from the user selecting the stream.” J.A, 600. This construction fails to indicate how the claims are directed to a scalable network architecture that itself leads to an improvement in the functioning of the system. Enfish, 822 F.3d at 1338. Nor does the construction provide any parameters for the “signals” purportedly dictating how the information is being routed. At best, the constructions propose the use of generic computer components to carry out the recited abstract idea, but that is not sufficient. In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) (holding that, despite reciting “concrete, tangible components,” the claims were .directed to an abstract idea where “the physical components merely provide[d] a generic environment in which to carry out the abstract idea”). The claim is therefore directed to an abstract idea. Because the claim is directed to an abstract idea, we proceed to Alice step two to determine whether the representative claims disclose a saving inventive concept. 2. Alice Step Two In Alice step two, we consider the elements of the claim, both individually and as an ordered combination, to assess whether the additional elements transform the nature of the claim into a patent-eligible application of the abstract idea. Content Extraction & Transmission LLC v. Wells Fargo Bank, 776 F.3d 1343, 1347 (Fed. Cir. 2014). Merely reciting the use of a generic computer or adding the words “apply it with a computer” cannot convert a patent-ineligible abstract idea-into a patent-eligible invention. Alice, 134 S.Ct. at 2358; Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1332 (Fed. Cir. 2015). To save a patent at step two, an inventive concept must be evident in the claims. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir." }, { "docid": "19597702", "title": "", "text": "inquiry is not whether the claimed invention as a whole is unconventional or non-routine. At step two, we \"search for an 'inventive concept' ... that is 'sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.' \" Alice , 134 S.Ct. at 2355 (internal quotation marks omitted) (quoting Mayo , 566 U.S. at 72-73, 132 S.Ct. 1289 ). After identifying an ineligible concept at step one, we ask at step two \"[w]hat else is there in the claims before us?\" Mayo , 566 U.S. at 78, 132 S.Ct. 1289. It has been clear since Alice that a claimed invention's use of the ineligible concept to which it is directed cannot supply the inventive concept that renders the invention \"significantly more\" than that ineligible concept. In Alice , the Supreme Court held that claims directed to a computer-implemented scheme for mitigating settlement risks claimed a patent-ineligible abstract idea. 134 S.Ct. at 2352, 2355-56. Some of the claims at issue covered computer systems configured to mitigate risks through various financial transactions. Id. After determining that those claims were directed to the abstract idea of intermediated settlement, the Court considered whether the recitation of a generic computer added \"significantly more\" to the claims. Id. at 2357. Critically, the Court did not consider whether it was well-understood, routine, and conventional to execute the claimed intermediated settlement method on a generic computer. Instead, the Court only assessed whether the claim limitations other than the invention's use of the ineligible concept to which it was directed were well-understood, routine and conventional. Id. at 2359-60. Our precedent has consistently employed this same approach. If a claim's only \"inventive concept\" is the application of an abstract idea using conventional and well-understood techniques, the claim has not been transformed into a patent-eligible application of an abstract idea. See, e.g., Berkheimer , 881 F.3d at 1370 (holding claims lacked an inventive concept because they \"amount to no more than performing the abstract idea of parsing and comparing data with conventional computer components\"); Affinity Labs of Tex., LLC v. DIRECTV, LLC" }, { "docid": "887138", "title": "", "text": "(3d Cir. 2007). Patent eligibility under § 101 is an issue of'law to which we review without deference. OIF Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362 (Fed. Cir. 2015). Section 101 of the Patent Act defines patent-eligible subject matter: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. In interpreting this statutory provision, the Supreme Court has held that its broad language is subject to an implicit exception for “laws of nature, natural phenomena, and abstract ideas,” which are not patentable. Alice Corp. v. CLS Bank Int’l, - U.S. -, 134 S.Ct. 2347, 2355, 189 L.Ed.2d 296 (2014). To determine whether the exception applies, the Supreme Court has set forth a two-step inquiry. Specifically, a court must determine: (1) whether the claim is directed to a patent-ineligible concept, i.e., a law of nature, a natural phenomenon, or an abstract idea; and if so, (2) whether the elements of the claim, considered “both individually and ‘as an ordered combination,’ ” add enough to “ ‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 132 S.Ct. 1289, 1297-98, 182 L.Ed.2d 321 (2012)). Applying this two-step process to claims challenged under the abstract idea exception, we typically refer to step one as the “abstract idea” step and step two as the “inventive concept” step. Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016). Under the “abstract idea” step we must evaluate “the ‘focus of the claimed advance over the prior art’ to determine if the claim’s ‘character as a whole’ is directed to excluded subject matter.” Id. (citation omitted). If the concept is directed to a patent-ineligible concept, we proceed to the “inventive concept” step. For that step we must “look with more specificity at what the claim elements add, in order to determine ‘whether they identify an “inventive concept” in" }, { "docid": "19544651", "title": "", "text": "of the claims at issue in the instant case. Specifically, like in Intellectual Ventures I , the focus of the instant claims is on distributing updated software to a computer through the Internet. Further, as in Intellectual Ventures I , the instant claims also \"generically recite the steps of\" \"displaying,\" \"sending,\" \"determining,\" \"receiving,\" and \"initiating\" an update \"with no description of the underlying programming.\" Id. Finally, although the limitations in the instant claims specify that the toolbar updates and modifications will be done \"without user interaction\" and \"dynamically,\" as the Intellectual Ventures I court stated, these limitations \"do not make the claimed invention any less abstract.\" Id. Accordingly, the Court finds that the claims at issue in the instant case are directed to an abstract idea. The Court next analyzes Alice step two. B. Alice Step Two \"In step two of the Alice inquiry, [the Court] search[es] for an 'inventive concept sufficient to transform the nature of the claim into a patent-eligible application.' \" RecogniCorp, LLC v. Nintendo Co. , 855 F.3d 1322, 1327 (Fed. Cir. 2017) (quoting McRO , 837 F.3d at 1312 (internal quotation marks omitted) ). \"To save the patent at step two, an inventive concept must be evident in the claims.\" Id. This inventive concept \"must be significantly more than the abstract idea itself,\" BASCOM , 827 F.3d at 1349, \"must be more than well-understood, routine, conventional activity,\" Affinity Labs of Texas, LLC v. DIRECTV , 838 F.3d 1253, 1262 (Fed. Cir. 2016), \"and cannot simply be an instruction to implement or apply the abstract idea on a computer.\" BASCOM , 827 F.3d at 1349. For example, it may be found in an \"inventive set of components or methods,\" \"inventive programming,\" or an inventive approach in \"how the desired result is achieved.\" Elec. Power Grp. , 830 F.3d at 1355. The Court finds that none of the elements of the claims at issue, assessed individually, provide an inventive concept. All of the hardware components recited in the claims are generic, conventional components. The claims recite a \"user Internet device\" and a server, and the specifications refer" }, { "docid": "13821061", "title": "", "text": "of human ingenuity,” claims directed to laws of nature, natural phenomena, and abstract ideas are not patent eligible. Alice Corp. Pty. v. CLS Bank Int’l, - U.S. -, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014). The Supreme Court instructs courts to distinguish between claims that claim patent ineligible subject matter and those that “integrate the building blocks into something more.” Id. First, we “determine whether the claims at issue are directed to a patent-ineligible concept.” Id. at 2355. If so, we “examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Id. at 2357 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72, 79, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012)). If the claims are directed to a patent-eligible concept, the claims satisfy § 101 and we need not proceed to the second step. Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1262 (Fed. Cir. 2017). At step one, we must “articulate what the claims are directed to with enough specificity to ensure the step one inquiry is meaningful.” Thales Visionix Inc. v. United States, 850 F.3d 1343, 1347 (Fed. Cir. 2017). Although there is “difficulty inherent in delineating the contours of an abstract idea,” Visual Memory, 867 F.3d at 1259, we must be mindful that “all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Mayo, 566 U.S. at 71, 132 S.Ct. 1289. We also ask whether the claims are directed to a specific improvement in the capabilities of computing devices, or, instead, “a pro- cess that qualifies as an ‘abstract idea’ for which computers are invoked merely as.a tool.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016). We previously have held claims focused on various improvements of systems directed to patent eligible subject matter under § 101. For example, in Enfish, we held claims reciting a self-referential table for a computer database eligible under step one because the claims were directed to a particular" }, { "docid": "916123", "title": "", "text": "and requirements of this title.” 35 U.S.C. § 101. In interpreting this statutory provision, the Supreme Court has held that its broad language is subject to an implicit exception for “laws of nature, natural phenomena, and abstract ideas,” which are not patentable. Alice Corp. v. CLS Bank Int'l, — U.S. -, 134 S.Ct. 2347, 2355, 189 L.Ed.2d 296 (2014). To determine whether the exception applies, the Supreme Court has set forth a two-step inquiry. Specifically, a court must determine: (1) whether the claim is directed to a patent-ineligible concept, i.e., a law of nature, a natural phenomenon, or an abstract idea; and if so, (2) whether the elements of the claim, considered “both individually and ‘as an ordered combination,’ ” add enough to “ ‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 132 S.Ct. 1289, 1297-98, 182 L.Ed.2d 321 (2012)). Applying this two-step inquiry to claims challenged under the abstract idea exception, we typically refer to step one as the “abstract idea” step and step two as the “inventive concept” step. Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016). Under the “abstract idea” step we evaluate “the ‘focus of the claimed advance over the prior art’ to determine if the claim’s ‘character as a whole’ is directed to excluded subject matter.” Id. If the claim is directed to a patent-ineligible concept, we proceed to the “inventive concept” step. For that step we “look with more specificity at what the claim elements add, in order to determine “whether they identify an “inventive concept” in the application of the ineligible subject matter’ to which the claim is directed.” Id. at 1258 (quoting Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)). On appeal, IV challenges the district court’s determinations that the ’081 and ’002 patents fail under step one and step two of Alice under § 101. The ’081 Patent The ’081 patent consists of twenty-nine claims relating to methods, systems, and apparatuses for dynamically managing extensible" } ]

[ { "docid": "12553309", "title": "", "text": "unreasonable because it is a “rule” that has not been promulgated in accordance with the formal rulemaking procedures of 5 U.S.C. § 553. Section 553 requires publication of an agency’s rules in the Federal Register at least thirty days before its effective date, and that persons subject to an agency’s rules be given notice of and an opportunity to comment on proposed rules. However, by its own terms, the notice and comment requirements of 5 U.S.C. § 553 do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice . . . .” 5 U.S.C. § 553(b)(3)(A). Distinguishing between those types of rules which to be valid must be promulgated pursuant to the procedures of section 553 and others whose validity does not rest on observance of that section’s notice and comment procedures has proved to be quite difficult. A few quite simple and universally accepted propositions can be stated, however. Legislative rules must be promulgated pursuant to section 553. Interpretative rules and other types of declarations described in section 553(b)(3)(A) frequently, but not invariably, need not be. The fundamental distinction between legislative rules and interpretative rules has been described by Professor Davis in the following manner: “A legislative rule is the product of an exercise of delegated legislative power to make law through rules. An interpretative rule is any rule an agency issues without exercising delegated legislative power to make law through rules.” 2 K. C. Davis, Administrative Law Treatise, §7:8 (2d ed. 1979) [hereinafter cited as Davis]. Valid and properly promulgated legislative rules have the force of law; interpretative rules are subject to having their content rejected by a court. Even though an agency has the power to promulgate legislative rules, as the Secretary does in this case, it might choose not to issue rules pursuant to that authority. In such instances the rules are interpretative, not legislative. Id. The preciseness of these propositions is greatly reduced by the fact that many courts have held that rules, even though intended by the agency to be interpretative, which have a “substantial impact”" } ]

[ { "docid": "18886991", "title": "", "text": "the private right of action preserved by § 706(f)(1) is “an adequate remedy in a court” for the alleged shortcomings in the EEOC’s handling of the plaintiffs’ charges. Thus we hold that the actions of the EEOC herein alleged are not reviewable by this court under the APA. The plaintiffs also allege that the EEOC’s adoption of the Accelerated Procedures Memorandum, which modified for the duration of the TQ project the procedures specified in the EEOC’s Compliance Manual, constituted “rulemaking” under the APA. Since the notice and comment procedure set forth at 5 U.S.C. § 553 for promulgating rules was not followed with regard to the Accelerated Procedures Memorandum, the plaintiffs contend that the EEOC therefore acted in violation of the APA. Such a failure to comply with the notice and comment procedure where it is required voids the rule. City of New York v. Diamond, 379 F.Supp. 503, 516 (S.D.N.Y.1974) (citing cases). The essential distinction which must be made in determining whether the notice and comment procedure of 5 U.S.C. § 553 is required is between “legislative” rules and “interpretive” rules. National Association of Insurance Agents, Inc. v. Board of Governors of the Federal Reserve System, 160 U.S.App.D.C. 144, 146, 489 F.2d 1268, 1270 (1974). See K. Davis, Administrative Law of the Seventies 146-7 (1976). This distinction is expressly recognized in § 553(b)(3)(A), which excepts from the procedure “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice,” Congress has not delegated to the EEOC any authority to promulgate legislative rules, and thus its rules are by necessity interpretive only. Title VII § 713(a), 42 U.S.C. § 2000e-12(a). General Electric Co. v. Gilbert, 429 U.S. 125, 141, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Equal Employment Opportunity Comm. v. Raymond Metal Products, Inc., 530 F.2d 590, 592-93 (4th Cir. 1976). Thus § 553 by its terms does not require the notice and comment procedure to be followed for any of the rules adopted by the EEOC. However, several courts have required even admittedly “interpretive” rules to be promulgated with notice and comment when those rules" }, { "docid": "1574386", "title": "", "text": "affirmance of the district court’s entry of judgment for the Forest Service, however, should not be read as an endorsement of the program beyond what was presented to us in this case. We are concerned about the direction of the present SBA and Forest Service practices in Mendocino. We reserve for another day, however, the question of whether it is for the judiciary or for Congress to determine whether the small-business share exceeds the “fair proportion” under the Act and what a “fair proportion” might be. AFFIRMED. . Louisiana-Pacific argues that the Manual creates a presumption in favor of carrying over surpluses and deficits in excess of 5 percent by providing that a decision not to carry forward the entire surplus or deficit requires specific procedures. Moreover, the Manual’s statement that when “such a change” is proposed comments must be solicited from industry shows that the Manual anticipates that an entire surplus will normally be carried over, according to Louisiana-Pacific. This is not an unreasonable reading of the sentences. Because of the ambiguity of the language, however, this portion of the Manual must also be read in the context of the entire set-aside program. Section 4c of the SBA-Forest Service agreement to create a set-aside program and §§ 2431.15b-3 and 2431.-17-1 of the Manual all show that purchase history is the basis of the program and that deviations from it should occur only due to unusual considerations such as past long-term sales and large salvage sales. Thus, the local circumstances language, when read in the context of the entire program, can also be reasonably construed as in the October memorandum. We reject the Government’s contention that the characterization of the memorandum is moot. If the memorandum was issued invalidly, it may be that the set-aside sales were also invalid and should not have been used in setting the new base share. . Louisiana-Pacific’s argument that the Director of Timber Management was not authorized by the Manual to issue the October memorandum is without merit. The Director is senior to the Forest Service personnel authorized in the Manual and it seems" }, { "docid": "4068252", "title": "", "text": "established in Minute 7 has been ratified by OPM in its brief before this court. We therefore hold that BRIOH’s action in applying the annuity computation formula to all PTF’s in October 1978 did not violate the Civil Service Retirement Act. 4. The Administrative Procedure Act Claim Finally, appellants contend that OPM’s admitted failure to follow notice and comment procedures in changing the method of annuity computation violated the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1976). Appellees respond by arguing that the change is exempt from the informal rulemaking provisions of the APA because it is an interpretative rule exempted by section 553(b)(A). It is in connection with this claim that the materiality of the dispute over the working conditions of PTF’s becomes an issue. a. Characterization of the Rule Appellees assert that at most the rule is interpretative, while appellants argue that the rule is legislative because it conclusively affects the substantive rights of a large number of postal employees. The district court held that the new method of annuity computation was an interpretative rule and was therefore exempt from section 553 rulemaking requirements. Memorandum, American Postal Workers Union v. United States Postal Service, CA 79-0874, at 6, 10 (D.D.C. Sept. 2, 1981), J.A. at 9, 13. We agree with the district court’s conclusion. The first step in deciding the nature of a rule is to ascertain whether the rule can possibly be legislative. A rule can be legislative only if Congress has delegated legislative power to the agency and if the agency intended to use that power in promulgating the rule at issue. Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1153 & n. 24 (D.C.Cir.1977). Because appellants have not identified a particular statutory provision as the source of OPM’s alleged power to promulgate legislative rules, we assume that appellants believe the new rule to have been promulgated pursuant to 5 U.S.C. § 8347(a). That section grants to OPM the general power to “administer” the Civil Service Retirement Act and to “prescribe such regulations as are necessary and proper to carry out” the Act." }, { "docid": "1574374", "title": "", "text": "notice and comment requirements of § 553, however, do not apply to interpretative rules. Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 987 (9th Cir.1980); Boating Industry Associations v. Marshall, 601 F.2d 1376, 1382 n. 6 (9th Cir.1979); 5 U.S.C. § 553(b)(3)(A). To determine whether the memorandum is a legislative or interpretative rule, we must decide whether in issuing the memorandum the Director of Timber Management was exercising or intending to exercise a delegated legislative power to make law. See Stoddard Lumber, 627 F.2d at 987 (quoting 2 K. Davis, Administrative Law Treatise, § 7:8 at 36 (2d ed.1979)). This determination is complicated here by the fact that the Forest Service had the authority to promulgate both legislative and interpretative rules concerning surpluses. When an agency ruling specifically provides a source of authority for promulgation, the determination that the ruling is legislative is simplified. Because no authority is provided in the October memorandum for its issuance, we must look for other indications of the Forest Service’s intent. In the memorandum, the Director used the word “interpretation” when discussing the decision. The label that agency personnel choose for describing an agency’s action, however, is only indicative, and not dispositive, of the agency’s intent. See Chamber of Commerce of the United States v. OSHA, 636 F.2d 464, 468 (D.C.Cir.1980). At trial, the Government elicited considerable testimony that, in issuing the October memorandum, the Forest Service intended to clarify but not to alter the set-aside program. While such evidence would be persuasive had it been presented at the time the interpretation was issued, it is entitled, at most, to very limited weight because it constitutes post hoc rationalization for the Forest Service’s action. See, e.g., Columbus & Southern Ohio Electric Co. v. Costle, 638 F.2d 910, 912 (6th Cir.1980) (judicial rule bars consideration of post hoc rationales for informal rulemaking); Tabor v. Joint Board for Enrollment of Actuaries, 566 F.2d 705, 709-10 (D.C.Cir.1977) (agency rulemaking not sustainable on post hoc rationalizations supplied during judicial review). A court may infer intent from the foreseeable effect that the rule will have. Chamber of Commerce, 636" }, { "docid": "5694025", "title": "", "text": "of the law expressed in Gibson Wine. If plaintiffs mean that any rule that an agency intends to be effective must be legislative, they are plainly wrong. Every rule is intended to have some effect, and although courts are not bound by interpretative rules, courts often follow agency interpretations, see, e.g., Skidmore v. Swift & Co., 323 U.S. 134,139-40, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). At the same time, we cannot believe that the Secretary really means that any rule that restates its authorizing statute is necessarily interpretative. If that were correct, then such restatements, even if they were promulgated pursuant to full notice-and-comment procedures and designated by the agency as legislative, would not be binding on the courts. We would have thought, however, that these rules generally would have to be upheld unless arbitrary and capricious. In resolving this point, the district court recognized that the distinction between legislative and interpretative rules has to do in part with the authority under which the rule is promulgated. “The question whether a rule is legislative or interpretative thus depends upon whether or not it is issued pursuant to a grant of lawmaking power.” 2 K. Davis, Administrative Law Treatise § 7.10, at 52 (2d ed. 1979). If the answer is yes, then the rule is legislative, it must be issued pursuant to section 553 procedures, and it is binding unless defective for one of the reasons given in 5 U.S.C. § 706(2) (1982). Where, as with USD A, an agency has authority to issue both legislative and interpretative rules, “[t]he crucial question is whether the agency intends to exercise delegated [lawmaking] power ..., and the intent usually can best be found in what the agency says at the time of issuing the rules.” K. Davis, Administrative Law op the Seventies § 5.03, at 148 (1976). Cf. National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 698 n. 8 (2d Cir.) (“ ‘interpretive rules’ refers only to rules not intended to have the force of law”), cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975). See also" }, { "docid": "1574372", "title": "", "text": "to drop the surplus in Mendocino. On March 25, 1977, the Regional Forester denied Louisiana-Pacific’s request for a full carry-forward and upheld the partial carry-forward under the extraordinary-circumstances test set out in the October memorandum. This is apparently when Louisiana-Pacific learned of the existence of the October memorandum. Louisiana-Pacific appealed from the denial and on August 12, 1977, the Chief of the Forest Service denied the request for a full carry-forward and, basing his decision on the extraordinary-circumstances test announced in the October memorandum, reversed the decision to partially carry forward the surplus. Having exhausted its administrative remedies, Louisiana-Pacific then filed suit for declaratory and injunctive relief because the set-aside program and the administrative decisions under it had reduced the quantity of Mendocino timber available for purchase by Louisiana-Pacific. At the conclusion of a four-day bench trial, the district court upheld the program as applied in Mendocino. On appeal, Louisiana-Pacific contends primarily that the Forest Service violated the Administrative Procedure Act (APA) when it promulgated the October memorandum allegedly containing a new general policy concerning when to carry forward surplus timber purchases. Louisiana-Pacific also argues that the Forest Service acted arbitrarily and capriciously in setting the share of Mendocino timber designated for sale to small businesses and in refusing to carry forward the surplus purchases made by small businesses from Mendocino in the 1971-75 period. II. The October Memorandum The Forest Service Manual provides that surpluses or deficits “may be dropped or carried over totally or in part depending on local circumstances that justify the decision.” The October memorandum limits that ambiguous grant of discretion such that “unless extraordinary circumstances exist to justify deviation, surpluses ... exceeding ... 5 percent will be totally dropped.” Louisiana-Pacific contends that the October memorandum should be characterized as a legislative rule because it reversed a presumption in the Manual that all surpluses regardless of size would be carried over. If the memorandum is a legislative rule, there is no doubt that it is invalid for not having been promulgated in accordance with the formal rulemaking procedures of the APA, 5 U.S.C. § 553. The" }, { "docid": "5694026", "title": "", "text": "legislative or interpretative thus depends upon whether or not it is issued pursuant to a grant of lawmaking power.” 2 K. Davis, Administrative Law Treatise § 7.10, at 52 (2d ed. 1979). If the answer is yes, then the rule is legislative, it must be issued pursuant to section 553 procedures, and it is binding unless defective for one of the reasons given in 5 U.S.C. § 706(2) (1982). Where, as with USD A, an agency has authority to issue both legislative and interpretative rules, “[t]he crucial question is whether the agency intends to exercise delegated [lawmaking] power ..., and the intent usually can best be found in what the agency says at the time of issuing the rules.” K. Davis, Administrative Law op the Seventies § 5.03, at 148 (1976). Cf. National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 698 n. 8 (2d Cir.) (“ ‘interpretive rules’ refers only to rules not intended to have the force of law”), cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975). See also Dist.Ct.Op. at 10. As noted by the district court, the circumstances surrounding the promulgation of this rule suggest that it was meant to have legislative effect. When the household definition rule was promulgated, the Secretary called it a “major” rule “because the rule will have a significant annual effect on the economy.” 46 Fed.Reg. at 44,712. He also stated that “implementation of these provisions will have an adverse effect on many potential applicants and some current participants.” Id. And, of course, he relied on the good cause exception, which, as noted earlier, supra pp. 179-181, suggests that he believed that but for that exception the rule would have been subject to section 553, hence not interpretative. See Dist.Ct.Op. at 10-11. The Secretary argues that the first two findings are irrelevant for, as a substantial number of courts and commentators have stated, see, e.g., Cabais, 690 F.2d at 237; 2 K. Davis, Administrative Law Treatise § 7.8, at 39 (2d ed. 1979), the fact that a rule has a substantial impact does not of itself make" }, { "docid": "1574371", "title": "", "text": "share, Louisiana-Pacific requested administrative review of the decision to drop the surplus after the nine-month period. The request was denied as premature. On September 13, 1976, the nine-month carry-forward decision was formally announced. Apparently to eliminate the inconsistent and sometimes politically based decisions about whether to carry forward surpluses and to assure that the small business set-aside program would adhere to purchase history, the SBA and the Forest Service met on September 14, 1976. In a “limited distribution” memorandum dated October 15,1976 (October memorandum), the Forest Service announced that they and the SBA had agreed to an interpretation of the section of the Manual addressing the treatment of surpluses or deficits in excess of 5 percent. That interpretation meant that surpluses or deficits exceeding 5 percent were to be dropped totally unless extraordinary circumstances existed to justify a deviation. The Forest Service sent the memorandum to all Regional Foresters, but made no public announcement of the memorandum or of its contents. On November 8, 1976, Louisiana-Pacific again requested administrative review of the Forest Service decision to drop the surplus in Mendocino. On March 25, 1977, the Regional Forester denied Louisiana-Pacific’s request for a full carry-forward and upheld the partial carry-forward under the extraordinary-circumstances test set out in the October memorandum. This is apparently when Louisiana-Pacific learned of the existence of the October memorandum. Louisiana-Pacific appealed from the denial and on August 12, 1977, the Chief of the Forest Service denied the request for a full carry-forward and, basing his decision on the extraordinary-circumstances test announced in the October memorandum, reversed the decision to partially carry forward the surplus. Having exhausted its administrative remedies, Louisiana-Pacific then filed suit for declaratory and injunctive relief because the set-aside program and the administrative decisions under it had reduced the quantity of Mendocino timber available for purchase by Louisiana-Pacific. At the conclusion of a four-day bench trial, the district court upheld the program as applied in Mendocino. On appeal, Louisiana-Pacific contends primarily that the Forest Service violated the Administrative Procedure Act (APA) when it promulgated the October memorandum allegedly containing a new general policy concerning" }, { "docid": "1574370", "title": "", "text": "reduce the share. Also at the end of the 1971-75 period, local Forest Service and SBA employees began deliberations about whether to carry forward the “surplus,” i.e., the 50 million board-feet difference between the 10-per-cent estimated level of purchases and the 24-percent actual. The Forest Service Manual provides that surpluses or deficits of 5 percent or less are to be carried over entirely to the next five-year period. If, however, the change in the small business share exceeds five percentage points, the Forest Supervisor can drop it or carry it over in whole or in part, depending upon the local circumstances that justify the decision. In the event of a decision to drop the surplus in whole or in part, the Manual requires solicitation of industry comments. Using these standards and procedures, the local Forest Service and SBA employees decided to carry forward the Mendocino surplus for only the first nine months of the 1976-80 period and issued a joint communique on May 25, 1976, describing the partial carry-forward. In its comments on the proposed share, Louisiana-Pacific requested administrative review of the decision to drop the surplus after the nine-month period. The request was denied as premature. On September 13, 1976, the nine-month carry-forward decision was formally announced. Apparently to eliminate the inconsistent and sometimes politically based decisions about whether to carry forward surpluses and to assure that the small business set-aside program would adhere to purchase history, the SBA and the Forest Service met on September 14, 1976. In a “limited distribution” memorandum dated October 15,1976 (October memorandum), the Forest Service announced that they and the SBA had agreed to an interpretation of the section of the Manual addressing the treatment of surpluses or deficits in excess of 5 percent. That interpretation meant that surpluses or deficits exceeding 5 percent were to be dropped totally unless extraordinary circumstances existed to justify a deviation. The Forest Service sent the memorandum to all Regional Foresters, but made no public announcement of the memorandum or of its contents. On November 8, 1976, Louisiana-Pacific again requested administrative review of the Forest Service decision" }, { "docid": "4068258", "title": "", "text": "it by the CETA statute “to prescribe rules with the force of law concerning the development of unemployment statistics.” Id. at 705 (footnote omitted). Similarly, in Joseph v. United States Civil Service Commission, 554 F.2d 1140 (D.C.Cir.1977), our decision that a CSC rule exempting certain political activities from coverage under the Hatch Act was a legislative rule was based not on the rule’s impact but rather on the fact that it was promulgated pursuant to a specific delegation of legislative power in the governing statute. Id. at 1153. The Fifth Circuit’s decision in Brown Express, Inc. v. United States, 607 F.2d 695 (5th Cir.1979), is also inapposite. There, the Fifth Circuit examined an ICC rule’s impact on the motor carrier industry solely in order to decide whether it was a “rule of agency procedure” exempted from notice and comment requirements by 5 U.S.C. § 553(b)(A). Id. at 701-03. Despite its finding of substantial impact, the Fifth Circuit expressly refused to find that the rule was legislative. Id. at 700 n. 5. As Professor Davis has noted, the impact of a rule has no bearing on whether it is legislative or interpretative; interpretative rules may have a substantial impact on the rights of individuals. 2 K. Davis, Administrative Law Treatise § 7:8, at 39 (2d ed. 1979). Thus, the substantial impact of the new rule on the retirement rights of 113,000 future retirees does not transform it into a legislative rule. As an interpretative rule, the new annuity computation formula is exempt from the rulemaking requirements of the APA, and OPM therefore did not act unlawfully in promulgating it without notice and comment proceedings. b. Review of the Rule Having characterized the rule as interpretative, we must now review it. In doing so we are not bound by the agency’s determination since an interpretative rule, unlike a legislative rule, does not have the force of law. Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1154 n. 26 (D.C.Cir.1977). Instead, we review the interpretative rule to determine its consistency with the governing statute and regulations. Although we may defer to" }, { "docid": "4068253", "title": "", "text": "an interpretative rule and was therefore exempt from section 553 rulemaking requirements. Memorandum, American Postal Workers Union v. United States Postal Service, CA 79-0874, at 6, 10 (D.D.C. Sept. 2, 1981), J.A. at 9, 13. We agree with the district court’s conclusion. The first step in deciding the nature of a rule is to ascertain whether the rule can possibly be legislative. A rule can be legislative only if Congress has delegated legislative power to the agency and if the agency intended to use that power in promulgating the rule at issue. Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1153 & n. 24 (D.C.Cir.1977). Because appellants have not identified a particular statutory provision as the source of OPM’s alleged power to promulgate legislative rules, we assume that appellants believe the new rule to have been promulgated pursuant to 5 U.S.C. § 8347(a). That section grants to OPM the general power to “administer” the Civil Service Retirement Act and to “prescribe such regulations as are necessary and proper to carry out” the Act. 5 U.S.C. § 8347(a) (Supp. V 1981). We find it unnecessary, however, to decide whether OPM could promulgate legislative rules under section 8347(a), for it is clear that in this case OPM did not intend to exercise any delegated legislative power. See 2 K. Davis, Administrative Law Treatise § 7:9, at 42 (2d ed. 1979); id. § 7:11, at 54. OPM has denied that it intended to promulgate a legislative rule. Brief for Appellees at 26-28. While an agency’s characterization of its own action is not conclusive, Citizens to Save Spencer County v. United States Environmental Protection Agency, 600 F.2d 844, 879 n. 171 (D.C.Cir.1979); Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 481-82 (2d Cir.1972), an objective examination of the context of the rule indicates that OPM’s characterization accurately reflects its intent. First, the origin of the pre-1978 method of computation indicates that it was not intended to be a legislative rule. Although the 1926 retirement act contained a provision in pertinent part very similar to present section 8347, Act of July 3,1926, ch." }, { "docid": "1574376", "title": "", "text": "F.2d at 469 & n. 7. See Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 1199, 86 L.Ed. 1563 (1942) (substance of what an agency has purported to do and what it has done is decisive in characterizing rule). It is undisputed that the memorandum was designed to and foreseeably would limit the discretion that local supervisors had concerning whether to carry forward the surpluses and deficits. It is also not disputed that the memorandum was needed in order to stop the selective, and sometimes political, application that had been occurring in this part of the program. The inference from these intended and foreseeable effects supports the argument that the Forest Service issued the memorandum to provide an interpretation to be applied consistently and not to change the carry-forward provisions. More importantly, we agree with the district court’s conclusion that Louisiana-Pacific has failed to establish sufficient reason for characterizing the issuance of the memorandum as legislative rulemaking. Because the memorandum was not issued pursuant to a legislatively delegated power to make rules having the effect of law and was not intended to be more than the Forest Service’s interpretation of a portion of the set-aside program, we conclude that the memorandum was an interpretative rule exempt from the formal requirements of the APA. Louisiana-Pacific contends that notice and an opportunity to comment should nonetheless be required under common law fairness requirements because the October memorandum had a “substantial impact” on a segment of the public. We have previously discussed the substantial-impact doctrine, and its possible vitiation by the Supreme Court’s decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978), that courts should avoid imposing procedural requirements beyond those of § 553. See Stoddard Lumber, 627 F.2d at 987. We need not decide here whether to adopt the doctrine or whether the doctrine has been vitiated, however, because we are convinced that the memorandum did not have a sufficiently substantial impact either in Mendocino or nationally to require common" }, { "docid": "1574375", "title": "", "text": "“interpretation” when discussing the decision. The label that agency personnel choose for describing an agency’s action, however, is only indicative, and not dispositive, of the agency’s intent. See Chamber of Commerce of the United States v. OSHA, 636 F.2d 464, 468 (D.C.Cir.1980). At trial, the Government elicited considerable testimony that, in issuing the October memorandum, the Forest Service intended to clarify but not to alter the set-aside program. While such evidence would be persuasive had it been presented at the time the interpretation was issued, it is entitled, at most, to very limited weight because it constitutes post hoc rationalization for the Forest Service’s action. See, e.g., Columbus & Southern Ohio Electric Co. v. Costle, 638 F.2d 910, 912 (6th Cir.1980) (judicial rule bars consideration of post hoc rationales for informal rulemaking); Tabor v. Joint Board for Enrollment of Actuaries, 566 F.2d 705, 709-10 (D.C.Cir.1977) (agency rulemaking not sustainable on post hoc rationalizations supplied during judicial review). A court may infer intent from the foreseeable effect that the rule will have. Chamber of Commerce, 636 F.2d at 469 & n. 7. See Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 1199, 86 L.Ed. 1563 (1942) (substance of what an agency has purported to do and what it has done is decisive in characterizing rule). It is undisputed that the memorandum was designed to and foreseeably would limit the discretion that local supervisors had concerning whether to carry forward the surpluses and deficits. It is also not disputed that the memorandum was needed in order to stop the selective, and sometimes political, application that had been occurring in this part of the program. The inference from these intended and foreseeable effects supports the argument that the Forest Service issued the memorandum to provide an interpretation to be applied consistently and not to change the carry-forward provisions. More importantly, we agree with the district court’s conclusion that Louisiana-Pacific has failed to establish sufficient reason for characterizing the issuance of the memorandum as legislative rulemaking. Because the memorandum was not issued pursuant to a legislatively delegated power" }, { "docid": "1574377", "title": "", "text": "to make rules having the effect of law and was not intended to be more than the Forest Service’s interpretation of a portion of the set-aside program, we conclude that the memorandum was an interpretative rule exempt from the formal requirements of the APA. Louisiana-Pacific contends that notice and an opportunity to comment should nonetheless be required under common law fairness requirements because the October memorandum had a “substantial impact” on a segment of the public. We have previously discussed the substantial-impact doctrine, and its possible vitiation by the Supreme Court’s decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978), that courts should avoid imposing procedural requirements beyond those of § 553. See Stoddard Lumber, 627 F.2d at 987. We need not decide here whether to adopt the doctrine or whether the doctrine has been vitiated, however, because we are convinced that the memorandum did not have a sufficiently substantial impact either in Mendocino or nationally to require common law notice and comment procedures. While Louisiana-Pacific has shown that the memorandum generated some controversy, the only possible “impact” on Mendocino that we discern here is that the memorandum may have had some effect on the Forest Service’s reversal of the nine-month carry-forward of the surplus recommended by local officials. But even that appears doubtful. In fact, the Forest Service supervisor upheld the partial carry-forward on the basis of the October memorandum. Louisiana-Pacific contends that the October memorandum had a substantial impact because it reversed a presumption in the Manual in favor of carrying forward surpluses and deficits. As we have discussed at footnote 1, supra, at 1209, however, neither Louisiana-Pacific’s nor the Forest Service’s reading of the Manual is unreasonable. Because we conclude later in this opinion that substantial deference should be given to the Forest Service’s reading, we do not think that the memorandum had a substantial impact on the administration of the set-aside program. III. The Mendocino Base Average Share Louisiana-Pacific contends that the base average share recomputation rules are invalid as" }, { "docid": "774586", "title": "", "text": "and the rise of legislative rules came during its dying period.” 2 Davis, Administrative Law Treatise § 7.9 at 44 (2d ed.1979). The term that developed to refer to those rules adopted pursuant to Congress’ power to delegate lawmaking power to the Executive was “legislative rules,” in contrast with “interpretative rules.” Id. at § 7.9. The fundamental distinction between “legislative” and “interpretative” rules, then, turns on whether Congress has by statute provided the agency with specific power to adopt rules to implement a statute. Contrast General Elec. Co. v. Gilbert, 429 U.S. 125, 141, 97 S.Ct. 401, 410, 50 L.Ed.2d 343 (1976) (interpretative rule where “Congress ... did not confer ... authority to promulgate rules or regulations ... ”) with Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977) (legislative rule where “Congress ... expressly delegated to the Secretary the power to prescribe standards ...” (emphasis in the original)). The consequences of characterization of a rule as interpretative or legislative are multiple. One consequence relates to the scope of judicial review. Where Congress has specifically authorized the making of rules, the court’s scope of review is substantially limited; on the other hand, interpretative rules are freely reviewable. As Judge Tamm observed in Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1154 n. 26 (D.C.Cir.1977): Classification of a rule as legislative has implications beyond the conclusion that [5 U.S.C.] section 553 notice and comment procedures apply. Legislative rules have the full force of law and are binding on a court subject only to review under an arbitrary and capricious standard. Interpretative rules do not have the force of law and even though courts often defer to an agency’s interpretative rule they are always free to choose otherwise. The distinction and the different standards are well recognized in this circuit. See Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 987 (9th Cir.1980). Because an interpretative rule is freely reviewable, the weight a court will accord it “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier" }, { "docid": "1574384", "title": "", "text": "power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); Good Samaritan Hospital, 609 F.2d at 954 (quoting Skidmore). Here, the Forest Service appears to have given fairly thorough consideration to the ruling: The agency met with the SBA to discuss the particular interpretation after it became apparent that problems had arisen. More importantly, the reasoning in the memorandum seems valid when viewed in the context of the entire set-aside program. The whole focus of the program is the purchase history of small business. The interpretation, that unless extraordinary circum stances exist, surpluses or deficits in excess of 5 percent are not to be carried over, preserves that focus. The interpretation is consistent both with the Manual and with the central agreement between the SBA and the Forest Service to develop a set-aside program. Sections 2431.15b-3 and 2431.17-1 of the Manual state that the need to consider factors other than purchase history should be minimal although an allowance can be made for “unusual considerations.” Section 4 of the agreement provides that recomputation of the base share is to be based on purchase history but that the Forest Service and the SBA may deviate from that history when “unusual considerations” arise. While the terms “extraordinary circumstances” and “unusual considerations” alone are not necessarily identical, their use in discussing the relationship between purchase history and proper base shares shows that they should be construed similarly. In summary, on the basis of the Skidmore factors as applied in this case, we think that substantial deference should be given to the agency’s interpretation. Consequently, the Forest Service’s refusal to carry forward the 1976 small-business surplus in Mendocino was consistent with these regulations and was not arbitrary and capricious. V. Conclusion Neither setting the 1976-80 small-business share of Mendocino timber at 24 percent nor dropping the 1971-75 small-business surplus was arbitrary, capricious, or an abuse of discretion. The October memorandum was an interpretative rule, not subject to APA rulemaking procedures or whatever common law fairness procedures that may exist. Our" }, { "docid": "14196596", "title": "", "text": "as legislative or interpretative hás a significant impact on the procedures required for its issuance, but it is a question distinct from the problem of proper rulemaking procedure. An agency can only issue legislative rules if it has been delegated that power by Congress. Without that authority all rules an agency issues are necessarily interpretative regardless of their impact. An agency without legislative rulemaking authority may issue interpretative rules which have such a significant impact that courts should require the agency to involve interested parties in its rulemaking process. E. g. Pickus v. United States Board of Parole, supra; see Koch, supra note 24, at 1059. However, it is both imprudent and unnecessary for a court to allow its conviction that an agency should permit public participation in the promulgation of a particular rule to influence its decision on whether the rule is legislative or interpretative. Classification of a rule as legislative has implications beyond the conclusion that section 553 notice and comment procedures apply. Legislative rules have the full force of law and are binding on a court subject only to review under an arbitrary and capricious standard. Interpretative rules do not have the force of law and even though courts often defer to an agency’s interpretative rule they are always free to choose otherwise. A court should not inadvertently grant an agency rule the binding effect of a legislative rule simply for the purpose of avoiding an exemption from the notice and comment procedures of section 553. See K. Davis, Administrative Law of the Seventies § 5.03-1, at 150-52 (1976). Even though a rule is exempt from the literal requirements of section 553, courts can require some sort of public participation in its issuance in the name of fairness and improved agency decision making. See id. §§ 6.01-7 to -8; Koch, supra at 1059-71. But see K. Davis, supra § 6.01-9; Koch, supra at 1071-78. . The Civil Service Commission did in fact provide, by letters, a rather detailed explanation of why it declined to extend its exemption beyond independent candidates. Memorandum in Support of Defendants’ Motion to" }, { "docid": "1574385", "title": "", "text": "made for “unusual considerations.” Section 4 of the agreement provides that recomputation of the base share is to be based on purchase history but that the Forest Service and the SBA may deviate from that history when “unusual considerations” arise. While the terms “extraordinary circumstances” and “unusual considerations” alone are not necessarily identical, their use in discussing the relationship between purchase history and proper base shares shows that they should be construed similarly. In summary, on the basis of the Skidmore factors as applied in this case, we think that substantial deference should be given to the agency’s interpretation. Consequently, the Forest Service’s refusal to carry forward the 1976 small-business surplus in Mendocino was consistent with these regulations and was not arbitrary and capricious. V. Conclusion Neither setting the 1976-80 small-business share of Mendocino timber at 24 percent nor dropping the 1971-75 small-business surplus was arbitrary, capricious, or an abuse of discretion. The October memorandum was an interpretative rule, not subject to APA rulemaking procedures or whatever common law fairness procedures that may exist. Our affirmance of the district court’s entry of judgment for the Forest Service, however, should not be read as an endorsement of the program beyond what was presented to us in this case. We are concerned about the direction of the present SBA and Forest Service practices in Mendocino. We reserve for another day, however, the question of whether it is for the judiciary or for Congress to determine whether the small-business share exceeds the “fair proportion” under the Act and what a “fair proportion” might be. AFFIRMED. . Louisiana-Pacific argues that the Manual creates a presumption in favor of carrying over surpluses and deficits in excess of 5 percent by providing that a decision not to carry forward the entire surplus or deficit requires specific procedures. Moreover, the Manual’s statement that when “such a change” is proposed comments must be solicited from industry shows that the Manual anticipates that an entire surplus will normally be carried over, according to Louisiana-Pacific. This is not an unreasonable reading of the sentences. Because of the ambiguity of the" }, { "docid": "15268568", "title": "", "text": "553. Because HHS provided New Jersey with no such opportunity to comment upon the OCSE transmittal before it became effective, the State argues that HHS violated the APA and that, consequently, the new application instruction should be invalidated. The APA notice and comment procedures exist for good reason: to ensure that unelected administrators, who are not directly accountable to the populace, are forced to justify their quasi-legislative rule-making before an informed and skeptical public. When these procedures are not followed in situations where they are in fact applicable, a court promotes neither the agency’s ultimate mission nor respect for the law by ignoring the agency’s indiscretion or condoning the agency’s shortcut. The rulemaking processes set forth in the APA do not govern every action undertaken by an administrative agency, however. Specifically, 5 U.S.C. § 553(b)(A) provides that an agency need not accord interested parties an opportunity for notice and comment with respect to the promulgation of “interpretative rules.” HHS asserts, not surprisingly, that the OCSE instruction at issue here constitutes an interpretative rule within the meaning of this provision and that therefore notice and comment procedures were not necessary. As previously noted, New Jersey contends, on the other hand, that HHS “in effect” has issued a legislative rule in “interpretative” clothing. This Court has attempted to identify the definitional and practical differences between legislative and interpretative rule-making on a number of recent occasions. See Cerro Metal Products v. Marshall, 620 F.2d 964, 981-82 (3d Cir. 1980); Buczynski v. General Motors Corp., 616 F.2d 1238, 1242 (3d Cir.), cert. denied, 448 U.S. 911, 101 S.Ct. 25, 65 L.Ed.2d 1141 (1980); Baker v. Otis Elevator Co., 609 F.2d 686, 691 (3d Cir. 1979); Daughters of Miriam Center for the Aged v. Mathews, 590 F.2d 1250, 1258-59 (3d Cir. 1978). In light of our previous decisions, we believe it unnecessary to consider the question once again in any detail. In brief, a “legislative rule is the product of an exercise of delegated legislative power to make law through rules,” whereas an “interpretative rule is any rule an agency issues without exercising delegated legislative" }, { "docid": "1574373", "title": "", "text": "when to carry forward surplus timber purchases. Louisiana-Pacific also argues that the Forest Service acted arbitrarily and capriciously in setting the share of Mendocino timber designated for sale to small businesses and in refusing to carry forward the surplus purchases made by small businesses from Mendocino in the 1971-75 period. II. The October Memorandum The Forest Service Manual provides that surpluses or deficits “may be dropped or carried over totally or in part depending on local circumstances that justify the decision.” The October memorandum limits that ambiguous grant of discretion such that “unless extraordinary circumstances exist to justify deviation, surpluses ... exceeding ... 5 percent will be totally dropped.” Louisiana-Pacific contends that the October memorandum should be characterized as a legislative rule because it reversed a presumption in the Manual that all surpluses regardless of size would be carried over. If the memorandum is a legislative rule, there is no doubt that it is invalid for not having been promulgated in accordance with the formal rulemaking procedures of the APA, 5 U.S.C. § 553. The notice and comment requirements of § 553, however, do not apply to interpretative rules. Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 987 (9th Cir.1980); Boating Industry Associations v. Marshall, 601 F.2d 1376, 1382 n. 6 (9th Cir.1979); 5 U.S.C. § 553(b)(3)(A). To determine whether the memorandum is a legislative or interpretative rule, we must decide whether in issuing the memorandum the Director of Timber Management was exercising or intending to exercise a delegated legislative power to make law. See Stoddard Lumber, 627 F.2d at 987 (quoting 2 K. Davis, Administrative Law Treatise, § 7:8 at 36 (2d ed.1979)). This determination is complicated here by the fact that the Forest Service had the authority to promulgate both legislative and interpretative rules concerning surpluses. When an agency ruling specifically provides a source of authority for promulgation, the determination that the ruling is legislative is simplified. Because no authority is provided in the October memorandum for its issuance, we must look for other indications of the Forest Service’s intent. In the memorandum, the Director used the word" } ]

[ { "docid": "12697189", "title": "", "text": "v. Ursini, 296 F.Supp. 1152, 1153 n. 1 (D.Conn.1968). Proceedings on McDonald’s petition consumed four and a half months. Simultaneous decision of all five matters was rendered about two months later. This is not a case of lengthy, unexplained delays, contra Pollack, 655 F.2d at 246; Smith, 650 F.2d at 209; In re: United States, 588 F.2d at 60-61. Nor do the periods during which the matters were under submission and ready for decision compare unfavorably with similar periods found acceptable in comparable cases, see DeMier, 671 F.2d at 1207; Williams, 573 F.2d at 528; Janiec, 505 F.2d at 986; Ursini, 296 F.Supp. at 1153. We agree with the district court that it acted on the combined proceedings with reasonable dispatch. Our final inquiry is into whether the district court in delaying action on the motion deliberately or effectively intervened in matters committed to the authority of the Parole Commission. The record clearly discloses that it did not. Its decision to reduce Krohn’s sentence was predicated on a review of the several defendants’ criminal activities, and a reappraisal of Krohn’s comparative culpability, ante at 1035. The classic function of motions for reduction of sentence is “simply to allow the district court to decide if, on further reflection, the original sentence now seems unduly harsh,” United States v. Maynard, 485 F.2d 247,248 (9th Cir.1973). The district court’s reconsideration of Krohn’s punishment in light of the degree of his criminal involvement accords squarely with this purpose. IV. We conclude that the district court had jurisdiction to rule on Krohn’s request for a reduction of his sentence. Its order is affirmed. AFFIRMED. . The conspiracy was alleged to violate 18 U.S.C. § 371. . In addition to the conspiracy count, Krohn was charged with possession with intent to distribute and distribution of Quaaludes, in violation of 21 U.S.C. § 841(a)(1), and with interstate travel to promote an unlawful activity, in violation of 18 U.S.C. § 1952(a)(3). The remaining defendants were variously charged with these and other crimes. . Testimony at that hearing established that the defendants had schemed to sell massive quantities of" } ]

[ { "docid": "1357583", "title": "", "text": "150-51 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983), the court found that section 3731 did not authorize an appeal from a district court order reducing a sentence because such an order is not mentioned specifically by the statute. More recently the same court, in Government of the Virgin Islands v. Douglas, 812 F.2d 822, 829 (3d Cir.1987), relied on Ferri to conclude that it had no jurisdiction under section 3731 to review a district court’s failure to impose two sentences consecutively. The Fifth Circuit, in United States v. Denson, 588 F.2d 1112, 1125-26 (5th Cir.), aff'd in part and modified in part, 603 F.2d 1143, 1145 (1979) (en banc), held that the government could not rely on section 3731 as authority to take a direct appeal from an allegedly illegal sentence. The Denson court, comparing the words of the statute with those of the Wilson Court, reasoned: Section 3731 cannot be construed to authorize a government appeal from any and every District Court order. To so construe Section 3731 would do violence to Congress’ express intention to carefully identify and define the situations in which the Government might appeal. We agree with counsel for the Government, who quite candidly admitted at oral argument that these judgments are in no material way even related to the types of orders set out in Section 3731. 588 F.2d at 1125-26. The Eleventh Circuit subsequently adopted the Denson decision. United States v. Cannon, 778 F.2d 747, 748 (11th Cir.1985) (“appeal is [not] the appropriate procedure for correction of an illegal sentence”); United States v. Dean, 752 F.2d 535, 540 n. 12 (11th Cir.1985) (“Denson forecloses any possible contention that 18 U.S.C. § 3731 authorizes a governmental appeal in the instant case.”), cert. denied, — U.S. —, 107 S.Ct. 97, 93 L.Ed.2d 48 (1986). The Eighth Circuit, although allowing appeal of a sentence reduction pursuant to section 1291, explicitly refused to find such authority under section 3731. United States v. DeMier, 671 F.2d 1200, 1204 n. 12 (8th Cir.1982) (“We do not read § 3731 to encompass the" }, { "docid": "7868224", "title": "", "text": "Fifth Amendment. Because an appeal from ap order modifying a sentence does not threaten to place the defendant twice in jeopardy, the government is not precluded from appealing a sentencing order. ... We hold, therefore, that the government may appeal, pursuant to section 1291, a district court’s order reducing a sentence. 627 F.2d at p. 1010. Accord: United States v. DeMier, 671 F.2d 1200 (8th Cir.1982) (holding § 1291 the proper statute authorizing government appeals from sentencing orders); United States v. Busic, 592 F.2d 13 (2d Cir.1978) (holding that a trial court’s sentence possesses the necessary characteristics of finality and completeness required under 28 U.S. C.A. § 1291); United States v. Neumann, 556 F.2d 1218 (5th Cir.1977); United States v. Brown, 301 F.2d 664 (4th Cir.1962). We note that in United States v. Denson, 603 F.2d 1143 (5th Cir.1979) the en banc court held that a writ of mandamus should issue to correct an illegal sentence. The court did recognize, however, that a court should not issue a writ of mandamus if other remedies are available. Inasmuch as we hold that the Government’s appeal is well taken pursuant to 18 U.S.C.A. § 3731 and 28 U.S.C.A. § 1291, we will deny the petition for writ of mandamus. II. The Government contends that the Probation Act (18 U.S.C.A. § 3651) does not authorize a judge to permit a corporation, as an alternative to payment of a fine, to make a contribution to a person or group not aggrieved by the crime. We agree. In United States v. Clovis Retail Liquor Dealers Trade Ass’n., 540 F.2d 1389 (10th Cir.1976), this court reversed the trial court’s judgment, following entry of pleas of nolo contendere to an indictment charging violations of the Sherman Antitrust Act in connection with price-fixing of retail liquor prices. The trial court, as a condition of probation, directed the defendants to pay various amounts totaling $233,500 to the County Council on Alcoholism. We observed that the only justification under 18 U.S.C.A. § 3651 is in the trial court’s authorization, as a condition of probation, to require “restitution or reparation to" }, { "docid": "18212873", "title": "", "text": "District Court, 645 F.2d 7 (6th Cir.1981); United States v. Hetrick, 644 F.2d 752 (9th Cir.1981), modifying 627 F.2d 1007 (9th Cir.1980). We do not find these opinions persuasive. The Ninth Circuit's original opinion in Hetrick concluded that 28 U.S.C. § 1291 provided the statutory basis for government appeals of sentence reduction orders, and that 18 U.S.C. § 3731, which previously had been held not to permit government appeals of such orders, did not preclude section 1291 jurisdiction. The court therefore held that the government may appeal such orders under section 1291. Hetrick, 627 F.2d at 1010. The court later modified its holding to state that the government may appeal such orders under section 3731. Hetrick, 644 F.2d at 754. We find this modified holding to be inconsistent with the rest of the Hetrick opinion, and we decline to adopt the Ninth Circuit’s position. The Sixth Circuit rested its decision solely on the original opinion in Hetrick, without even mentioning the amended opinion. United States v. United States District Court, 645 F.2d at 8. Finally, the Eighth Circuit simply followed the Sixth Circuit. DeMier, 671 F.2d at 1204. . One exception to this general rule is that a prior decision not \"on the merits\" will have res judicata effect as to issues that were actually decided. See Aeree v. Air Line Pilots Ass’n, 390 F.2d 199, 203 (5th Cir.) (prior decision on jurisdictional grounds precludes further litigation of jurisdictional issue), cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968). This exception, however, is not applicable here. . We emphasize that our holding is based on the unique procedural circumstances of this case, and does not authorize generally the refiling of previously denied petitions for writs of mandamus. We express no opinion concerning whether, in general, the prior denial of a petition for a writ of mandamus may preclude a court from reaching the merits of a subsequent petition seeking the same remedy. . The government filed its appeal on May 2, 1984, less than one month after the entry of the sentence reduction order. . The facts" }, { "docid": "15974152", "title": "", "text": "person not a party to the criminal case and not a step in the criminal case”). Under the authority of Carroll several courts have held that section 1291 authorizes an appeal by the government from certain orders relating to sentencing. See United States v. Busic, 592 F.2d 13, 25-26 (2d Cir. 1978) (government can cross-appeal under section 1291 from part of sentence order designating an early date for parole eligibility); United States v. United States District Court, 601 F.2d 379 (9th Cir. 1978) (section 1291 authorizes government appeal of district court’s failure to impose a special mandatory parole term). In Busic the Second Circuit reasoned that: The [sentence] order is clearly a “final decision” both within the meaning of [28 U.S.C. § 1291] ... and within the meaning generally given in the context of criminal proceedings .... Just as surely, it is “truly collateral to the criminal prosecution itself in the sense that [it] will not ‘affect, or ... be affected by, decision of the merits of this case.’ ” 592 F.2d at 26 (citations and footnotes omitted). Based on this same rationale both the Sixth Circuit and the Eighth Circuit have specifically held that the government may appeal, pursuant to section 1291, a district court order reducing a sentence. United States v. DeMier, 671 F.2d 1200, 1203-04 (8th Cir. 1982); United States v. United States District Court, 645 F.2d 7 (6th Cir. 1981). The government relies primarily upon these two decisions as support for its contention that a direct appeal is authorized in this case. Other courts, however, have rejected the contention that orders relating to sentencing fall within the Carroll doctrine. See United States v. Denson, 588 F.2d at 1126-27; United States v. Lane, 284 F.2d 935, 938 (9th Cir. 1960). In Denson, the Fifth Circuit reasoned that: The sentencing process is the inevitable culmination of a successful prosecution; it is an integral aspect of a conviction. Therefore, we hold that the orders of sentence and probation are not possessed of “sufficient independence” from the criminal case to permit a Government appeal under 28 U.S.C.A. § 1291. 588" }, { "docid": "15974149", "title": "", "text": "this contention, we must first determine whether we have jurisdiction to review the government’s challenge to the order reducing Matthews’ sentence. The government asserts that the order is “final” and presents the “necessary characteristics of independence and completeness” to be appealable under the general authority of 28 U.S.C. § 1291 and that, alternatively, review is appropriate by way of mandamus. The government has conceded that 18 U.S.C. § 3731, the statute ordinarily invoked to authorize government appeals in criminal cases, does not authorize an appeal from an order such as the one in question. We agree. Neither a sentencing order nor an order reducing a sentence are specifically mentioned in section 3731. As the Fifth Circuit recently stated in United States v. Denson, 588 F.2d 1112, 1125 (5th Cir.), vacated on other grounds, 603 F.2d 1143 (5th Cir. 1979) (en banc): Section 3731 cannot be construed to authorize a Government appeal from any and every District Court order. To so construe Section 3731 would do violence to Congress’ express intention to carefully identify and define the situations in which the Government might appeal. Accord, United States v. DeMier, 671 F.2d 1200, 1204 n.12 (8th Cir. 1982). Contra, United States v. Hetrick, 644 F.2d 752, 754-55 (9th Cir. 1981). We turn then to the government’s contention that this appeal is authorized under 28 U.S.C. § 1291, which confers on the courts of appeals “jurisdiction of appeals from all final decisions of the district courts of the United States.” It is well established that as a general rule “the Federal Government enjoys no inherent right to appeal a criminal judgment, and that the grant of general appellate jurisdiction, now contained in 28 U.S.C. § 1291, does not authorize such a federal appeal.” Arizona v. Manypenny, 451 U.S. 232, 246, 101 S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981). See Di-Bella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962); United States v. Jannotti, 673 F.2d 578, 580 n.l (3d Cir. 1982) (en banc), cert. denied, - U.S. -, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). In Carroll" }, { "docid": "18212877", "title": "", "text": "defendant’s sentence under Rule 35(b), not Rule 35(a). See DeMier, 671 F.2d at 1204-08 (discussing whether the district court lacked jurisdiction over the Rule 35 motion because the 120-day period expired prior to the granting of the motion). Therefore, DeMier is distinguishable from the instant case, and the district court’s statements in DeMier concerning a possible due process violation must be viewed as dicta. In any event, we find the district court’s due process language in DeMier wholly irreconcilable with the Supreme Court’s opinion in Addonizio. . The panel opinion in Denson had previously indicated that mandamus was the proper remedy for an unlawful sentence. Nevertheless, the panel had declined to issue a writ of mandamus on the grounds that mandamus was an \"extraordinary remedy” not warranted by the facts. Denson, 588 F.2d at 1111-12 (\"When we examine the facts in the instant case, we do not find a compelling need for the writ. Indeed, we find a more compelling case for declining to exercise our discretion over the issuance of the writ.”). On rehearing en banc, the former Fifth Circuit acknowledged that “[d]iscretion might be inherent in the writ.” Denson, 603 F.2d at 1147. The court also noted, however, that ”[t]he scope of discretion is ... circumscribed by the purpose for which the writ is sought. Under some circumstances the room for judgment is narrowly constrained.\" Id. at 1146. The court found itself \"constrained by the narrow scope of discretion dictated by precedent,” id. at 1148, and unpersuaded by the reasons given by the panel in support of its decision not to issue the writ. Therefore, the en banc court issued the writ of mandamus. Id. at 1149. . We also note that the Third Circuit has recently held that mandamus, not appeal, is the proper remedy when a district court improperly grants an untimely motion for reduction of sentence under Rule 35(b). See United States v. Ferri, 686 F.2d 147 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). The Ferri court held that “[s]uch an issue of judicial power falls squarely within" }, { "docid": "15974150", "title": "", "text": "the situations in which the Government might appeal. Accord, United States v. DeMier, 671 F.2d 1200, 1204 n.12 (8th Cir. 1982). Contra, United States v. Hetrick, 644 F.2d 752, 754-55 (9th Cir. 1981). We turn then to the government’s contention that this appeal is authorized under 28 U.S.C. § 1291, which confers on the courts of appeals “jurisdiction of appeals from all final decisions of the district courts of the United States.” It is well established that as a general rule “the Federal Government enjoys no inherent right to appeal a criminal judgment, and that the grant of general appellate jurisdiction, now contained in 28 U.S.C. § 1291, does not authorize such a federal appeal.” Arizona v. Manypenny, 451 U.S. 232, 246, 101 S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981). See Di-Bella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962); United States v. Jannotti, 673 F.2d 578, 580 n.l (3d Cir. 1982) (en banc), cert. denied, - U.S. -, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). In Carroll v. United States, 354 U.S. 394, 403-04, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442 (1957) (citations and footnotes omitted), however, the Supreme Court stated: [Cjertain orders relating to a criminal ease may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U.S.C. § 1291 without regard to the limitations of 18 U.S.C. § 3731, just as in civil litigation orders of equivalent distinctiveness are appealable on the same authority without regard to the limitations of 28 U.S.C. § 1292. The instances in criminal cases are very few. ... In such cases, as appropriate, the Government as well as the moving person has been permitted to appeal from an adverse decision. See United States v. Fields, 425 F.2d 883, 886 (3d Cir. 1970) (government may appeal under section 1291 order directing return of seized property to third party because “the motion for return of the motor vehicle was an independent proceeding intended for the benefit of a" }, { "docid": "15974153", "title": "", "text": "and footnotes omitted). Based on this same rationale both the Sixth Circuit and the Eighth Circuit have specifically held that the government may appeal, pursuant to section 1291, a district court order reducing a sentence. United States v. DeMier, 671 F.2d 1200, 1203-04 (8th Cir. 1982); United States v. United States District Court, 645 F.2d 7 (6th Cir. 1981). The government relies primarily upon these two decisions as support for its contention that a direct appeal is authorized in this case. Other courts, however, have rejected the contention that orders relating to sentencing fall within the Carroll doctrine. See United States v. Denson, 588 F.2d at 1126-27; United States v. Lane, 284 F.2d 935, 938 (9th Cir. 1960). In Denson, the Fifth Circuit reasoned that: The sentencing process is the inevitable culmination of a successful prosecution; it is an integral aspect of a conviction. Therefore, we hold that the orders of sentence and probation are not possessed of “sufficient independence” from the criminal case to permit a Government appeal under 28 U.S.C.A. § 1291. 588 F.2d at 1126. Given the Supreme Court’s emphasis upon the rarity of orders falling within the Carroll doctrine and the strict requirement that such orders possess sufficient independence from the criminal case, it is indeed debatable whether the order challenged here can properly be classified as falling within the Carroll doctrine. However, since we believe that review by way of mandamus, pursuant to 28 U.S.C. § 1651, is appropriate in this case, we need not decide whether the order in question is appealable under 28 U.S.C. § 1291. See United States v. United States District Court, 509 F.2d 1352, 1354 (9th Cir.), cert. denied, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975). See also Frederick L. v. Thomas, 578 F.2d 513, 516 (3d Cir. 1978); United States v. Jackson, 550 F.2d 830, 831 (2d Cir. 1977). B. Propriety of Mandamus Mandamus is an extraordinary remedy which is “to be granted only in extraordinary cases.” United States v. Olds, 426 F.2d 562, 565 (3d Cir. 1970). “[Mandamus] can, of course, not be availed of" }, { "docid": "1357584", "title": "", "text": "3731 would do violence to Congress’ express intention to carefully identify and define the situations in which the Government might appeal. We agree with counsel for the Government, who quite candidly admitted at oral argument that these judgments are in no material way even related to the types of orders set out in Section 3731. 588 F.2d at 1125-26. The Eleventh Circuit subsequently adopted the Denson decision. United States v. Cannon, 778 F.2d 747, 748 (11th Cir.1985) (“appeal is [not] the appropriate procedure for correction of an illegal sentence”); United States v. Dean, 752 F.2d 535, 540 n. 12 (11th Cir.1985) (“Denson forecloses any possible contention that 18 U.S.C. § 3731 authorizes a governmental appeal in the instant case.”), cert. denied, — U.S. —, 107 S.Ct. 97, 93 L.Ed.2d 48 (1986). The Eighth Circuit, although allowing appeal of a sentence reduction pursuant to section 1291, explicitly refused to find such authority under section 3731. United States v. DeMier, 671 F.2d 1200, 1204 n. 12 (8th Cir.1982) (“We do not read § 3731 to encompass the instant appeal, and do not rely on it for our appellate jurisdiction.”). Finally, we note that at the time Horak was sentenced, section 3576 of the Criminal Code explicitly allowed the government to appeal sentences imposed under the dangerous special offenders provision, 18 U.S. C. § 3575. We believe that the combined presence of sections 3576 and 3731, both enacted by Congress in 1970, support our conclusion that government appeals of sentencing orders are not authorized under section 3731. Both provisions describe in careful detail the circumstances under which the government may seek review of a judgment in a criminal case. Neither provision grants to the United States a general right to appeal any and all sentencing orders. Moreover, if Congress had intended section 3731 to authorize appeals from sentencing decisions, it would not have been necessary for it to expressly grant the right to appeal a single type of sentence — that imposed upon a dangerous special offender — under section 3576. Therefore, we agree with other courts that have concluded that Congress in" }, { "docid": "18212870", "title": "", "text": "purports to reconsider an earlier, timely Rule 35(b) motion. See Norton, 539 F.2d at 1083; see also United States v. Hetrick, 644 F.2d 752, 756 (9th Cir.1981) (\"Nor is the jurisdictional defect cured by styling the subsequent motion as a 'motion for reconsideration.' ”). . No. 84-8386, filed May 2, 1984. . No. 84-8475, filed June 11, 1984. . 28 U.S.C. § 1291 provides, in pertinent part: The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States, ... except where a direct review may be had in the Supreme Court. . The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . In Denson, as in the instant case, the government also filed a petition for a writ of mandamus under Rule 21 of the Federal Rules of Appellate Procedure. See infra note 20. . On rehearing en banc, the former Fifth Circuit affirmed and reinstated the portion of the panel opinion concerning the dismissal of the government’s appeal. Denson, 603 F.2d at 1145. The Denson panel opinion also discussed the Criminal Appeals Act, 18 U.S.C. § 3731, which enumerates certain instances in which the government may bring an appeal in a criminal case. Although 18 U.S.C. § 3731 was enacted “to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit,\" United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975), the court explained that the statute \"cannot be construed to authorize a Government appeal from any and every District Court order.\" Denson, 588 F.2d at 1125. The court concluded that the sentencing orders were \"in no material way even related to the types of orders set out in Section 3731.” Id. at 1126. The court therefore held that 18 U.S.C. § 3731 did not provide a statutory basis for the government’s appeal. Id.; accord, United States v. Ferri, 686 F.2d" }, { "docid": "23409746", "title": "", "text": "district court’s mistaken impression that the defendant could have been given 55 years instead of the maximum of 25 that was actually authorized. 619 F.2d at 368. We did not require reduction, but noted that “[t]he District Court should at least be able to reconsider the matter.” 619 F.2d at 368. That situation, we submit, is simply different from the present one, which concerns a sentence increase in response to a successful rule 35 motion. The government further relies on McClain v. United States, 478 F.Supp. 732 (S.D.N.Y.1979), vacated, 643 F.2d 911 (2d Cir.), cert. denied, 452 U.S. 919, 101 S.Ct. 3057, 69 L.Ed.2d 424 (1981), on appeal from remand, 676 F.2d 915 (2d Cir.), cert. denied, - U.S. -, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). For an analysis of the McClain cases, see Section III.C and note 26, infra. The government finally relies on United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). For an analysis of Busic, see Part II, supra. See also United States v. Kinsley, 518 F.2d 665, 670 (8th Cir. 1975) (rule 35 case where defendant had received maximum number of years on all counts). . Section 3772 gives to the Supreme Court “the power to prescribe, from time to time, rules of practice and procedure with respect to any or all proceedings after verdict.” 18 U.S.C. § 3772 (1976). . For the full text of rule 35, see note 15, supra. . United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979); accord, United States v. Krohn, 700 F.2d 1033, 1035-38 (5th Cir.1983) (noting that district court can act within reasonable time after 120 days if rule 35(b) motion is filed before that deadline); United States v. Rice, 671 F.2d 455, 459 (11th Cir.1982); United States v. DeMier, 671 F.2d 1200, 1205-07 (8th Cir.1982); United States v. Counter, 661 F.2d 374, 376 & n. 4 (5th Cir.1981). See also Twelñh Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1981-82, 71" }, { "docid": "18212876", "title": "", "text": "not find it significant that Addonizio involved a challenge to the legality of the sentence under 28 U.S.C. § 2255, whereas the instant case involves a Rule 35(a) motion to correct an illegal sentence. Although the Supreme Court in Addonizio emphasized the limited scope of collateral attack on final judgments under section 2255, see 422 U.S. at 184-86, 99 S.Ct. at 2240-41, the Court's ultimate conclusion was that the decision of the Parole Commission \"did not affect the lawfulness of the judgment itself — then or now.” Id. at 187, 99 S.Ct. at 2241. . In his Rule 35 motion, Dean relied heavily on the case of United States v. DeMier, 520 F.Supp. 1160 (W.D.Mo.1981), aff’d, 671 F.2d 1200 (8th Cir.1982), for the proposition that a sentence imposed on the basis of erroneous information concerning Parole Commission guidelines violates the due process clause. We acknowledge that the district court’s opinion in DeMier contains such language. Nevertheless, upon closer examination, it is apparent that the district court in DeMier ultimately granted the motion to reduce the defendant’s sentence under Rule 35(b), not Rule 35(a). See DeMier, 671 F.2d at 1204-08 (discussing whether the district court lacked jurisdiction over the Rule 35 motion because the 120-day period expired prior to the granting of the motion). Therefore, DeMier is distinguishable from the instant case, and the district court’s statements in DeMier concerning a possible due process violation must be viewed as dicta. In any event, we find the district court’s due process language in DeMier wholly irreconcilable with the Supreme Court’s opinion in Addonizio. . The panel opinion in Denson had previously indicated that mandamus was the proper remedy for an unlawful sentence. Nevertheless, the panel had declined to issue a writ of mandamus on the grounds that mandamus was an \"extraordinary remedy” not warranted by the facts. Denson, 588 F.2d at 1111-12 (\"When we examine the facts in the instant case, we do not find a compelling need for the writ. Indeed, we find a more compelling case for declining to exercise our discretion over the issuance of the writ.”). On rehearing" }, { "docid": "15974148", "title": "", "text": "2, 1980 and corrected by order of court on April 1, 1981 shall remain in full force and effect except that the defendant shall become eligible for parole pursuant to 18 U.S.C. § 4205(b)(2) and not pursuant to 18 U.S.C. § 4205(a).” App. at 165a. Thereafter on March 2, 1982, Matthews filed a second motion for reduction of sentence pursuant to Rule 35. On March 23, 1982, before a response was filed by the government, the district court granted the motion, ordering that Matthews’ sentence be reduced to time served and that he be immediately released from custody. The government immediately sought a stay of the district court order, pending appeal to this court. This motion was not ruled upon by the district court and Matthews was released from custody on March 26, 1982. The government contends that Matthews’ March 2, 1982 motion for reduction of sentence was filed outside the time limits established by Rule 35 and that, therefore, the district court was without jurisdiction to grant the motion. Before addressing the merits of this contention, we must first determine whether we have jurisdiction to review the government’s challenge to the order reducing Matthews’ sentence. The government asserts that the order is “final” and presents the “necessary characteristics of independence and completeness” to be appealable under the general authority of 28 U.S.C. § 1291 and that, alternatively, review is appropriate by way of mandamus. The government has conceded that 18 U.S.C. § 3731, the statute ordinarily invoked to authorize government appeals in criminal cases, does not authorize an appeal from an order such as the one in question. We agree. Neither a sentencing order nor an order reducing a sentence are specifically mentioned in section 3731. As the Fifth Circuit recently stated in United States v. Denson, 588 F.2d 1112, 1125 (5th Cir.), vacated on other grounds, 603 F.2d 1143 (5th Cir. 1979) (en banc): Section 3731 cannot be construed to authorize a Government appeal from any and every District Court order. To so construe Section 3731 would do violence to Congress’ express intention to carefully identify and define" }, { "docid": "18212872", "title": "", "text": "147, 151 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983); United States v. DeMier, 671 F.2d 1200, 1204 n. 12 (8th Cir.1982). Denson forecloses any possible contention that 18 U.S.C. § 3731 authorizes a government appeal in the instant case. . The government cites United States v. Krohn, 700 F.2d 1033 (5th Cir.1983), for the proposition that, under 28 U.S.C. § 1291, sentence reduction orders entered in Rule 35 proceedings are distinguishable from original sentencing orders. In Krohn, the current Fifth Circuit entertained the government's appeal from a sentence reduction order entered in a Rule 35 proceeding. Id. at 1035. The court did not discuss the appellate jurisdiction issue, however, nor did the court even mention Denson. We therefore decline to give precedential weight to Krohn on the appellate jurisdiction issue. We acknowledge that at least three other circuits have ruled that the government may ap peal sentence reduction orders entered under Rule 35. See United States v. DeMier, 671 F.2d 1200 (8th Cir.1982); United States v. United States District Court, 645 F.2d 7 (6th Cir.1981); United States v. Hetrick, 644 F.2d 752 (9th Cir.1981), modifying 627 F.2d 1007 (9th Cir.1980). We do not find these opinions persuasive. The Ninth Circuit's original opinion in Hetrick concluded that 28 U.S.C. § 1291 provided the statutory basis for government appeals of sentence reduction orders, and that 18 U.S.C. § 3731, which previously had been held not to permit government appeals of such orders, did not preclude section 1291 jurisdiction. The court therefore held that the government may appeal such orders under section 1291. Hetrick, 627 F.2d at 1010. The court later modified its holding to state that the government may appeal such orders under section 3731. Hetrick, 644 F.2d at 754. We find this modified holding to be inconsistent with the rest of the Hetrick opinion, and we decline to adopt the Ninth Circuit’s position. The Sixth Circuit rested its decision solely on the original opinion in Hetrick, without even mentioning the amended opinion. United States v. United States District Court, 645 F.2d at 8. Finally," }, { "docid": "6215115", "title": "", "text": "1981, the Government responded to the request for hearing by asserting that the defendants had failed to show good cause for relief under Rule 35. The Government, however, raised no objection to the court’s jurisdiction to rule on the DeMiers’ motion for reduction of sentence. The court granted the DeMiers’ motion, noting that in imposing sentence it had relied on 1978 Parole Commission guidelines which prescribed sixteen- to twenty-months’ incarceration for the DeMiers’ offense. Judge Oliver noted that, for understandable reasons, he had received inaccurate information at the initial sentencing, because at that time judges and probation officers had not yet received the 1979 guidelines. His records disclosed that he had not received the revised guidelines until after September 7, 1979, approximately one month following imposition of the initial sentence upon the DeMiers. Moreover, Judge Oliver assumed that the guidelines, which formed the basis for the presentence reports, remained in effect when he reimposed the three-year sentence on July 3, 1980, as he had not been specifically advised of the application of the revised guidelines to the criminal acts committed by the De-Miers. II. Appellate Jurisdiction. The Government asserts that this court has jurisdiction to review the action of the district court by a writ of mandamus under 28 U.S.C. § 1651 (the All Writs Act), or by appeal either under 28 U.S.C. § 1291, or 18 U.S.C. § 3731. This court has not confronted the question whether the Government may appeal a trial court’s decision to reduce a sentence under Rule 35. We note, however, that several other courts have held such decisions appealable. Sec United States v. United States District Court for the Northern District of Ohio, 645 F.2d 7 (6th Cir. 1981); United States v. Hetrick, 644 F.2d 752 (9th Cir. 1981); United States v. United States District Court, Central District of California, 601 F.2d 379 (9th Cir. 1978). Although we have entertained challenges to district court orders reducing sentences under Rule 35 by writs of mandamus, see United States v. Williams, 573 F.2d 527 (8th Cir. 1978); United States v. Regan, 503 F.2d 234 (8th Cir." }, { "docid": "7868223", "title": "", "text": "appeals, again because the appeal from the sentences does not threaten to place Prescon or VSL twice in jeopardy. In United States v. Romero, 642 F.2d 392 (10th Cir.1981) we said: Ordinarily, a decision in a criminal case is not final for purposes of appeal until sentence has been imposed. See Berman v. United States, 302 U.S. 211 [58 S.Ct. 164, 82 L.Ed. 204] ... (1911); James v. United States, 348 F.2d 430 (10th Cir.1965).... The right of appeal is a statutory right. See Abney v. United States, 431 U.S. 651 [97 S.Ct. 2034, 52 L.Ed.2d 651] ... (1977). And, therefore, Section 1291 has to be complied with. 642 F.2d at p. 397. In United States v. Hetrick, supra, the court held that in addition to the right of appeal authorized pursuant to 18 U.S.C.A. § 3731, the government was also authorized to appeal pursuant to 28 U.S.C.A. § 1291: Under Wilson and Martin Linen Supply, a government appeal is barred only if it implicates the concerns protected by the Double Jeopardy Clause of the Fifth Amendment. Because an appeal from ap order modifying a sentence does not threaten to place the defendant twice in jeopardy, the government is not precluded from appealing a sentencing order. ... We hold, therefore, that the government may appeal, pursuant to section 1291, a district court’s order reducing a sentence. 627 F.2d at p. 1010. Accord: United States v. DeMier, 671 F.2d 1200 (8th Cir.1982) (holding § 1291 the proper statute authorizing government appeals from sentencing orders); United States v. Busic, 592 F.2d 13 (2d Cir.1978) (holding that a trial court’s sentence possesses the necessary characteristics of finality and completeness required under 28 U.S. C.A. § 1291); United States v. Neumann, 556 F.2d 1218 (5th Cir.1977); United States v. Brown, 301 F.2d 664 (4th Cir.1962). We note that in United States v. Denson, 603 F.2d 1143 (5th Cir.1979) the en banc court held that a writ of mandamus should issue to correct an illegal sentence. The court did recognize, however, that a court should not issue a writ of mandamus if other remedies are" }, { "docid": "1357582", "title": "", "text": "prosecution” up to the limits of double jeopardy. 420 U.S. at 338, 95 S.Ct. at 1019. But denying a forfeiture request is quite different from terminating a prosecution. Courts faced with government appeals in criminal cases are struggling to reconcile the specific language of section 3731 with the broad language of the Supreme Court. With respect to the appealability of sentencing orders under section 3731, the courts of appeals are divided. Some circuits, relying on Wilson and finding no double jeopardy bar, are reviewing such orders. See, e.g., United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987); United States v. Wright Contracting Co., 728 F.2d 648, 650 (4th Cir.1984); United States v. Prescon Corp., 695 F.2d 1236, 1240-41 (10th Cir.1982); Godoy, 678 F.2d at 87-88. We, however, believe that other circuits that have taken a more restrictive view of the appealability of sentencing orders under section 3731 have a more persuasive position. For example, in United States v. Ferri, 686 F.2d 147, 150-51 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983), the court found that section 3731 did not authorize an appeal from a district court order reducing a sentence because such an order is not mentioned specifically by the statute. More recently the same court, in Government of the Virgin Islands v. Douglas, 812 F.2d 822, 829 (3d Cir.1987), relied on Ferri to conclude that it had no jurisdiction under section 3731 to review a district court’s failure to impose two sentences consecutively. The Fifth Circuit, in United States v. Denson, 588 F.2d 1112, 1125-26 (5th Cir.), aff'd in part and modified in part, 603 F.2d 1143, 1145 (1979) (en banc), held that the government could not rely on section 3731 as authority to take a direct appeal from an allegedly illegal sentence. The Denson court, comparing the words of the statute with those of the Wilson Court, reasoned: Section 3731 cannot be construed to authorize a government appeal from any and every District Court order. To so construe Section" }, { "docid": "18212871", "title": "", "text": "the former Fifth Circuit affirmed and reinstated the portion of the panel opinion concerning the dismissal of the government’s appeal. Denson, 603 F.2d at 1145. The Denson panel opinion also discussed the Criminal Appeals Act, 18 U.S.C. § 3731, which enumerates certain instances in which the government may bring an appeal in a criminal case. Although 18 U.S.C. § 3731 was enacted “to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit,\" United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975), the court explained that the statute \"cannot be construed to authorize a Government appeal from any and every District Court order.\" Denson, 588 F.2d at 1125. The court concluded that the sentencing orders were \"in no material way even related to the types of orders set out in Section 3731.” Id. at 1126. The court therefore held that 18 U.S.C. § 3731 did not provide a statutory basis for the government’s appeal. Id.; accord, United States v. Ferri, 686 F.2d 147, 151 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983); United States v. DeMier, 671 F.2d 1200, 1204 n. 12 (8th Cir.1982). Denson forecloses any possible contention that 18 U.S.C. § 3731 authorizes a government appeal in the instant case. . The government cites United States v. Krohn, 700 F.2d 1033 (5th Cir.1983), for the proposition that, under 28 U.S.C. § 1291, sentence reduction orders entered in Rule 35 proceedings are distinguishable from original sentencing orders. In Krohn, the current Fifth Circuit entertained the government's appeal from a sentence reduction order entered in a Rule 35 proceeding. Id. at 1035. The court did not discuss the appellate jurisdiction issue, however, nor did the court even mention Denson. We therefore decline to give precedential weight to Krohn on the appellate jurisdiction issue. We acknowledge that at least three other circuits have ruled that the government may ap peal sentence reduction orders entered under Rule 35. See United States v. DeMier, 671 F.2d 1200 (8th Cir.1982); United States v. United States" }, { "docid": "18212856", "title": "", "text": "about the government’s intent to challenge the reduction of his sentence, Olds is inapposite. This case is more closely analogous to the recent Third Circuit decision in United States v. Ferri, 686 F.2d 147 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). In Fern, the government filed a timely notice of appeal of a sentence reduction order, but did not file a petition for a writ of mandamus until almost three months later. The court ruled that mandamus was the proper remedy, and rejected the defendant’s argument that the government was guilty of laches: [Fjrom the outset, [the defendant] was put on notice that the government was challenging the reduction of his sentence. After filing its appeal, the government, being justifiably uncertain as to the proper procedural vehicle for review of an order reducing a criminal sentence, filed its petition for a writ of mandamus____ Thus, in view of the fact that in this case the government expeditiously appealed the order in question, we reject [the defendant’s] contention that the government is guilty of laches with respect to its filing of the mandamus petition. Id. at 153 (citation omitted). We agree with the views expressed by the Third Circuit in Ferri, and we cannot say that the government acted unreasonably in the instant case. We therefore hold that the government was not guilty of laches in contesting the denial of the prior petition for a writ of mandamus. D. The New Petition for a Writ of Mandamus Finally, we address the merits of the new petition for a writ of mandamus. The government contends that the writ should issue because the district court lacked the authority under Rule 35 to reduce Dean’s sentence and because mandamus is the proper remedy. Dean responds that the district court had the authority to “correct” the sentence under Rule 35(a) because the sentence was originally entered on the basis of an erroneous material assumption about the length of time he would likely serve in prison prior to parole. Dean contends that, in view of this erroneous assumption, his" }, { "docid": "8724238", "title": "", "text": "United States “ ‘has no right of appeal in a criminal case, absent explicit statutory authority.’” United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 434, 66 L.Ed.2d 328 (1980) (quoting United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190, 57 L.Ed.2d 65 (1978)). The government’s right to appeal a non-Guidelines sentence imposed for a straddle conspiracy is an issue of first impression in this circuit. United States v. Corbitt, 13 F.3d 207, 211 (7th Cir.1993), held that a timely motion under old Rule 35(a) is the proper vehicle for the government to correct non-Guidelines sentences, even though the requested relief is resen-tencing under the Guidelines. Corbitt did not address whether the government may appeal the denial of an old Rule 35(a) motion because the district court had granted its motion. Corbitt, 13 F.3d at 209. The government relies on three statutes that other circuits have held authorize the government to appeal non-Guidelines sentences, which we will address in turn. The government contends that 18 U.S.C. § 3731 and 28 U.S.C. § 1291 provide it with statutory authority to appeal the district court’s sentencing order. These arguments can be easily rejected. United States v. Spilotro, 884 F.2d 1003, 1005-06 (7th Cir.1989) held that neither 18 U.S.C. § 3731 nor 28 U.S.C. § 1291 provides the United States with statutory authority to appeal from a district court’s reduction of a non-Guidelines sentence. See also United States v. Horak, 833 F.2d 1235, 1244-48 and 1247-48 n. 10 (7th Cir.1987) (holding that the United States has no authority under 18 U.S.C. § 3731 or 28 U.S.C. § 1291 to appeal from a district court’s sentencing order denying forfeiture). Spilotro and Horak are controlling in this case, and the government has provided no justification for revisiting these decisions. We therefore reject these asserted bases of jurisdiction for the reasons stated in Spilotro and Horak. The government also contends that it has statutory authority to appeal the district court’s order pursuant to 18 U.S.C. § 3742(b)(1), which provides that the government “may file a notice of appeal in the district" } ]

[ { "docid": "18935143", "title": "", "text": "the only evidence Sanders had presented of a hostile environment was Falica’s statement “Nigger, you’re suspended,” and that this one instance of racial harassment was not sufficiently severe or pervasive to alter the conditions of employment and create an objectively hostile work environment. Notably, the district court did not address the issue of whether Falica’s use of “nigger” during the verbal altercation with Sanders was direct evidence of race discrimination in the suspension. In fact the district court concluded that “[p]laintiff does not argue that he was suspended because of his race or that using the word ‘nigger’ amounted to constructive discharge.” More notably, Sanders did not at the time the court rendered its opinion, nor through a Rule 59 motion to reconsider, notify the court that it should address his argument concerning discriminatory treatment. Instead, Sanders now appeals the district court’s decision granting Dixm-oor summary judgment. However, he does not challenge the district court’s conclusion that he failed to present sufficient evidence of an objectively hostile environment. Rather, Sanders contends that summary judgment was inappropriate because he presented sufficient evidence that he was suspended because of his race. But as noted, the district court did not address this issue. While Sanders’ complaint was framed broadly enough to include a claim of a racially motivated suspension, at the summary judgment stage Sanders failed to alert the district court to this theory. “It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.” Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.1983). Here, Dixmoor moved for summary judgment arguing that Sanders had failed to present sufficient evidence of a hostile environment claim, and that his suspension was due to his insubordination and not his race. Sanders’ response failed to address the issue of the suspension and instead focused on the use of the word “nigger,” citing cases for the proposition that the" } ]

[ { "docid": "8974952", "title": "", "text": "finding that “even a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and creates an abusive work environment for purposes of Title VII liability.” Id. at 1305. The line between “sporadic racial slurs” and a “steady barrage of opprobrious racial comments” is particularly well-drawn in Richardson, the Second Circuit’s most recent formulation of the Title VII racially hostile workplace standard. Richardson involved an African-American plaintiff who alleged that she was subjected to a racially hostile work environment while employed by the New York State Department of Correctional Service at two different facilities over a period of six years. 180 F.3d at 433. During plaintiffs first assignment at the Auburn Correctional Facility (“ACF”), she was allegedly subjected to the following incidents of explicit racial harassment: [0]ne of [plaintiffs] supervisors referred to Blacks as “apes or baboons” and stated that African-Americans are “so dark you cannot see them anyway,” one coworker referred to her as a “light-skinned nigger,” another called her “nigger,” yet another went out of his way on one occasion to use the word nigger in her presence, others circulated a joke that disparaged Blacks and referred to them as “niggers,” while still others used the terms “spooks” and “Buck-wheats” to refer to African-Americans. Id. at 439. In light of both the quantity and frequency of alleged racial slurs and the repeated use of the “ ‘unambiguously racial epithet ... nigger’ ”, the Second Circuit reversed the district court’s grant of summary judgment with respect to Richardson’s claim of hostile environment discrimination at ACF. Id. at 439-40 (quoting Rodgers v. Westemr-Southem Life Ins. Co., 12 F.3d 668, 675 (7th Cir.1993)). The Second Circuit explained that although “[a] factfinder may well conclude that the ACF environment was not so objectionable as to alter negatively the terms and conditions of a reasonable person’s employment”, the court could not state, as a matter of law, “that the record evidence compels only that result.” Id. at 440. In contrast, the Second Circuit upheld the lower court’s grant of summary judgment with respect to Richardson’s allegations of hostile environment discrimination" }, { "docid": "23653396", "title": "", "text": "personally. In the fall of 1987, when he first spotted the dummy suspended in the doorway, he believed that it was meant to signify violence towards the black employees at Essex and himself (Tr. 56). Although his testimony would be credited as to the effect of the dummy upon him had he kept his feelings to himself, the effigy upset him enough for him to complain to his supervisor. The next incident of racial harassment reported by Daniels involved the graffiti, “KKK” and “All niggers must die,” written on the restroom wall in his department. The slogans had an effect on Daniels similar to that of the dummy. He took the initials “KKK” to stand for the Ku Klux Klan and acts of violence, white sheets and hatred of blacks for which the organization is infamous. As for the proclamation that “All niggers must die,” Daniels said that this graffiti made him afraid (Tr. 60). Again, as with the dummy, Daniels reported the graffiti to his supervisor. Adding to the hostile work environment which Daniels perceived was the racist slur and threat he received from Art Reimer, a fellow Essex employee. When Art called the plaintiff “nigger” and threatened to beat him up, and threatened his family, Daniels became fearful as a result of the harassment. Therefore, when someone fired a gunshot into his home one night, Daniels surmised that someone at work was responsible. According to his testimo ny, this was the last straw. Daniels resigned, and stated in writing that he couldn’t take working at Essex any longer (Tr. 70). Even though the physical threat by Art was not specifically racial in nature, it may be considered as a predicate act in establishing racial harassment in a hostile work environment, because it would not have occurred but for the fact that Daniels was black. Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir.1988); McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C.Cir.1985). By the time that Daniels quit, the racial harassment profoundly affected him both physically and psychologically. He changed from being the diligent, good worker that" }, { "docid": "2547149", "title": "", "text": "abusive conduct from behavior that is merely vulgar or mildly offensive. Two of the three acts at issue in this case involved unwelcome, forcible physical contact of a rather intimate nature. Having a co-worker insert his tongue into one’s mouth without invitation and having one’s brassiere nearly removed is not conduct that would be anticipated in the workplace, and certainly not in a family restaurant. A reasonable person in Hostetler’s position might well experience that type of behavior as humiliating, and quite possibly threatening. See Harris, 510 U.S. at 23, 114 S.Ct. at 371. Even the lewd remark that Payton allegedly made to Hostetler was more than a casual obscenity. Referring as it did to a hypothetical sexual act between Hostetler and Payton, it readily could be interpreted as an (uninvited) sexual proposition. These were not, in sum, petty vulgarities with the potential to annoy but not to objectively transform the workplace to a degree that implicates Title VII. A workplace rife with the behavior Hostetler describes could readily be described as a hostile working environment. See generally Harris, 510 U.S. at 21-22, 114 S.Ct. at 370-71. The more specific, and more difficult, question that we must answer is whether the behavior was so serious that the finder of fact could label Hostetler’s work environment hostile notwithstanding the limited number of the acts involved. Harassment need not be severe and pervasive to impose liability; one or the other will do. Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir.1999); see Harris, 510 U.S. at 21, 114 S.Ct. at 370; Meritor, 477 U.S. at 66, 106 S.Ct. at 2405. There is no “magic number” of incidents required to establish a hostile environment. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994), citing Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993). We have repeatedly recognized that even one act of harassment will suffice if it is egregious. See Smith, 189 F.3d at 533-34; DiCenso v. Cisneros, 96 F.3d 1004, 1009 (7th Cir.1996); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273-74 & n. 4" }, { "docid": "18164145", "title": "", "text": "of summary judgment in hostile work environment action where plaintiff alleged a single incident of sexual harassment the she wqs sexually assaulted by two of her supervisors), and the repeated use of the “unambiguously racial epithet ... nigger,” see Richardson, 180 F.3d at 439 (“[pjerhaps no single act can more quickly alter the conditions. of employment and create an abusive working environment than the use of the unambiguously racial epithet such as ‘nigger’ ”), the Court concludes that rational jurors could infer from the totality of the circumstances that a reasonable employee would have found the environment hostile or abusive. The Court concludes that these allegations suffice to raise a material issue of fact of whether Plaintiffs were subjected to a discriminatory hostile work environment. See id, 180 F.3d at 437 (cautioning that because the existence of racial harassment in a hostile work environment is a “mixed question of law and fact,” it is “especially well-suited for jury determination and summary judgment may be granted only when reasonable minds could not differ on the issue”). 2) Employer Liability Plaintiffs. seek to hold Home Depot liable for the alleged conduct which created the hostile work environment. Defendants assert an affirmative defense that their response to the alleged inappropriate conduct was effectively remedial and prompt. Whether a specific basis exists for imputing this conduct to the Company is a close call. The Supreme Court has held in two companion decisions, Faragher and Burlington, that an employer is presumptively liable for a hostile work environment “created by a supervisor with immediate (or successively higher) authority over the employee.” Faragher v. City of Boca Raton, 524 U.S. 775, 805-06, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d 662 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998) (companion case); see Cruz, 202 F.3d at 572 n. 8. As a threshold matter, relying on Parkins v. Civil Constructors, Inc., 163 F.3d 1027, 1034 (7th Cir.1998), Defendants argue that even if their conduct created an actionable hostile environment, Home Depot is not vicariously liable for the alleged misconduct because none" }, { "docid": "7906346", "title": "", "text": "could find that the words on which Hrobowski predicates his claim for a hostile environment were unwelcome. As to whether the harassment was based on race, there is no dispute. We therefore turn to the third prong of inquiry, asking whether a reasonable jury could find that the harassment unreasonably interfered with Hrobowski’s work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well-being. Parkins, 163 F.3d at 1032. Another method of framing this issue, as we have done in some of our opinions, is to ask whether the harassing words or conduct were “severe or pervasive,” although the substance of the inquiry is the same either way. See, e.g., Quantock v. Shared Marketing Servs., Inc., 312 F.3d 899, 903-04 (7th Cir.2002) (emphasis on the disjunctive added). The district court held that Hrobowski did not satisfy the third element of a hostile environment claim, but it based its analysis on the erroneous premise that the harassing words or conduct had to be both severe and pervasive. Not so: “one or the other will do.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir.2000). For Hrobowski to prove that he was exposed to a severe or pervasive hostile environment, he must prove that the words or actions to which he was subjected were both objectively and subjectively hostile. Robinson v. Sappington, 351 F.3d 317, 329 (7th Cir.2003). Considering the evidence that the district court delineated, and that we quoted above, we conclude that a reasonable jury could find that the work environment was objectively hostile. According to Hrobow-ski’s deposition testimony, on which he relied in opposition to Worthington’s motion for summary judgment, he was repeatedly subjected to hearing the word “nigger,” including more than one occasion in which a fellow supervisor suggested that he talk to an employee “nigger to nigger.” Given American history, we recognize that the word “nigger” can have a highly disturbing impact on the listener. Cf. Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 1545, 155 L.Ed.2d 535 (2003) (noting that the Ku Klux Klan vowed to “keep" }, { "docid": "8021635", "title": "", "text": "F.3d 1080, 1086 (7th Cir.2000); this also is not a case where there were only a few verbal utterances made in the context of office banter, Logan v. Kautex Textron N. Am., 259 F.3d 635, 639; and this case is nothing like Sanders v. Vill. of Dixmoor, 178 F.3d 869, 870 (7th Cir.1999), where there was one isolated racial epithet, in response to the plaintiffs already inappropriate conduct. It appears that the epithets at Steel continued for many months, although this is a matter on which greater clarity from the district court is necessary. Adding up all of the derogatory names directed at Cerros as well as all of the graffiti on the bathroom walls, and coupling that with more information about how frequently or how long the abuse endured, the court might well find that both the pervasiveness and the severity measures are high. These are, to a certain degree, inversely related; a sufficiently severe episode may occur as rarely as once, see Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir.1999), while a relentless pattern of lesser harassment that extends over a long period of time also violates the statute. While there is no “magic number” of slurs that indicate a hostile work environment, we have recognized before that an unambiguously racial epithet falls on the “more severe” end of the spectrum. See Rodgers, 12 F.3d at 675 (“Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment’ than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.”). When Cerros attempted to escape the comments by transferring shifts, the offending supervisor followed him to the new shift. Although, as the district court noted, Cerros was not subject to physical threats, Harris makes it clear that such a showing is not a sine qua non for a harassment claim. Cerros endured a workplace environment filled with slurs and graffiti based on his race and national origin. Steel not only tolerated the harassment, but even worse, according to the facts found by" }, { "docid": "18164144", "title": "", "text": "son of a bitch,” “tar baby,” “porch monkey,” made a joke that disparaged blacks and referred to them as “jungle bunnies,” and addressed black individuals as “you people.” Considered together, a reasonable person might find that these episodes were sufficiently severe and pervasive to constitute a pattern of harassment. In light of the frequency and quality of the alleged racial conduct, see, e.g., Richardson, 180 F.3d at 437-39 (reversing district court’s grant of summary judgment in hostile work environment action where plaintiff alleged she was subjected to ten racially hostile incidents during a three and one-half year employment, including co-workers’ use of the word “nigger”); Schwapp, 118 F.3d at 108 (reversing district court’s grant of summary judgment in hostile work environment action where first black police officer employed by the Town of Avon alleged he was subjected to ten racially hostile incidents during a ten- month period, including his fellow officers’ repeated use of the term “nigger” in his presence and the distribution of racially offensive joke); Tomka, 66 F.3d 1295 (reversing district court’s grant of summary judgment in hostile work environment action where plaintiff alleged a single incident of sexual harassment the she wqs sexually assaulted by two of her supervisors), and the repeated use of the “unambiguously racial epithet ... nigger,” see Richardson, 180 F.3d at 439 (“[pjerhaps no single act can more quickly alter the conditions. of employment and create an abusive working environment than the use of the unambiguously racial epithet such as ‘nigger’ ”), the Court concludes that rational jurors could infer from the totality of the circumstances that a reasonable employee would have found the environment hostile or abusive. The Court concludes that these allegations suffice to raise a material issue of fact of whether Plaintiffs were subjected to a discriminatory hostile work environment. See id, 180 F.3d at 437 (cautioning that because the existence of racial harassment in a hostile work environment is a “mixed question of law and fact,” it is “especially well-suited for jury determination and summary judgment may be granted only when reasonable minds could not differ on the issue”)." }, { "docid": "23653403", "title": "", "text": "suffer similar adverse effects as those experienced by Daniels. Daniels, 740 F.Supp. at 560. Plainly, any black would find this graffiti threatening. In addition to the instances of racial harassment directed at Daniels by his coworkers, a reasonable employee would have found the general workplace environment oppressive also. Daniels himself was the victim of racial taunts such as the nickname “Buckwheat” for the first ten years that he was employed at Essex. He asked his co-workers to back off, but, for the most part, he chose to turn the other cheek and endure the prejudice. These conditions place the hostile environment that emerged in the fall of 1987 into perspective. The appearance of the dummy did not represent an unexplainable aberration in a heretofore harmonious environment free of the taint of racial discrimination. Rather, the change in environment marked the outbreak of a more injurious strain of the virus of racism that had already infected the workplace. As recounted above, when James Alexander, a black man, applied for a position at the Columbia City plant where Daniels worked, Alexander was discouraged by an Essex supervisor who described the workplace as “extremely prejudiced.” Ultimately, Alexander did not obtain the job. Moreover, the scale-house wall, in addition to containing the personal slur against Daniels, showed the name “Reinaldo Gonzalez,” an apparent reference to Daniels’ coworker Randy Heron, who “looked Mexican.” Daniels, 740 F.Supp. at 558. Both of these examples help to fulfill the objective standard of a hostile work environment that provided fertile ground for an outgrowth of racial harassment. They serve to demonstrate that Daniels did not weave his allegations out of whole cloth, and bolster the confidence of the finder of. fact in the plaintiffs veracity and in the objective reasonableness of his claims. 3. The employer’s obligation to take remedial action Having established that Daniels’ injury was subjectively hurtful and objectively reasonable, we now consider the final predicate to liability for racial harassment in a hostile work environment. This Court has repeatedly recognized that an employer will be liable for discrimination by an employee “if the employer knew or" }, { "docid": "3910806", "title": "", "text": "‘spic’ could be sufficiently severe to constitute an objectively hostile environment.” Nonetheless, the court found that “the conduct at issue was not sufficiently severe or pervasive as to make the working environment hostile or to change the terms and conditions of employment.” In reviewing the court’s first order, we expressed concern that the court’s finding that Cerros did not suffer a hostile work environment “may have resulted from a misunderstanding about the legal threshold for harassment cases; ... the district court here may well have set the bar too high as a matter of law.” Cerros I, 288 F.3d at 1046-47. The court’s second order does little to alleviate this concern. While the order correctly uses the disjunctive “or” when discussing the issues of severity or pervasiveness, it does not, taken as a whole, carry through on this point. We reiterate now that conduct that is either pervasive or severe may give rise to a hostile work environment. See Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir.2004) (rejecting the “erroneous premise that the harassing words or conduct had to be both severe and pervasive” and emphasizing that “one or the other will do” (internal quotation marks omitted)). Nor did the court seem to appreciate that “even one act of harassment will suffice if it is egregious.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir.2000); see also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273 (7th Cir.1991) (“The number of instances of harassment is but one factor to be considered in the examination of the totality of the circumstances.”). Otherwise, how could it have said that “certainly the Plaintiff encountered some race and national origin Mated remarks and graffiti in the Defendant’s workplace; certainly some of these were offensive, unenlightened, and inappropriate; however, they were relatively isolated and infrequent, occurring over the course of more than a year.” We emphasized in Cerros I that “[wjhile there is no ‘magic number’ of slurs that indicate a hostile work environment, we have recognized before that an unambiguously racial epithet falls on the ‘more severe’ end of" }, { "docid": "19333790", "title": "", "text": "Reed The record also presents a genuine dispute of material facts that Reed’s work environment was objectively hostile. Reed worked for Austal for two and a half years, during which he heard racial slurs and saw racist graffiti in the men’s restrooms “every[]day.” He “could not use the restroom without seeing a racial slur or remark on the wall,” and “every now and then,” he saw racist graffiti, such as “I hate niggers,” on a boat that he helped build. His supervisor, who is white, called him “boy” on “several” occasions. See Ash v. Tyson Foods, Inc., 664 F.3d 883, 897 (11th Cir.2011) (“[T]he decision maker[] used the word ‘boy’ in a racially demeaning way.”). Reed also saw Austal employees, including supervisors, wear apparel with Confederate flags “every day.” And he learned that a white coworker called a black coworker a “black bitch.” Reed raises a disputed issue that the harassment he experienced was frequent and severe. Even though Austal cleaned the racist graffiti regularly, it filled the walls of the restroom that he used daily, and he also saw racist graffiti on the ship where he worked. He also heard racial slurs every day and saw employees and supervisors wear Confederate flags every day. And his supervisor called him “boy” on “several” occasions. A reasonable jury could find that his workplace was objectively hostile. c.Jerome Pettibone The record also presents a genuine dispute of material facts that Pettibone’s work environment was objectively hostile. Pettibone worked for Austal for over three years, during which he saw racist graffiti in the bathroom on multiple occasions, saw Confederate flags displayed by multiple coworkers “all through the building,” and saw a drawing of a hangman with the caption “niggers.” Pettibone was one of the employees who discovered the noose in the breakroom, and his coworkers accused him of hanging it. He also heard secondhand about other nooses and racial slurs. One of the slurs was made by his supervisor, who had said, “[Y]ou can get a lot of free slavery.... A lot of hard work with cheap slave labor done.” And he heard" }, { "docid": "6230757", "title": "", "text": "alleged derogatory statements made by managers were made to him. One of these (“that damn nigger”) was made in the context of breaking up the emotional confrontation involving spitting and threats. Mr. Jackson testified that he did not understand the other statement (“black” or “damn black”) at the time and that he could not remember it well. The four alleged racial statements made by coworkers were highly offensive, but two of these (“nigger shit, radio” and “nigger-rigging”) were not referring directly to Mr. Jackson, and another (“fucking nigger”) was made in the heat of the spitting episode, during which it is uncontradicted that Mr. Jackson had threatened to “kick both of [his co-workers’] asses” and to “kill” one of them. The offensive racial slurs in the record were infrequent and few in number, and some of them appear to have been offhand remarks not directed specifically at Mr. Jackson; there is no evidence of a “steady barrage of opprobrious racial comment.” Standing alone, we think that the derogatory language identified by Mr. Jackson would not violate Title VII, which does not “impose a code of workplace civility.” See Palesch, 233 F.3d at 567. The burning cross graffiti, however, makes this a closer case, as its symbolism is potentially more hostile and intimidating than the racial slurs. Even a single instance of workplace graffiti, if sufficiently severe, can go a long way toward making out a Title VII claim. Two of our recent cases provide guidance as to the proper significance to be given the graffiti in assessing Mr. Jackson’s claim. Each case is factually similar to the instant case in that the plaintiffs were trying to make out a hostile work environment claim based on evidence that a small number of racial epithets had been uttered in the workplace and racist graffiti had appeared in the bathroom. In Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 844 (8th Cir.2002), “racist graffiti — drawings of ‘KKK,’ a swastika, and a hooded figure— appeared on the walls of one of the men’s restrooms at the plant” and copies of" }, { "docid": "8974951", "title": "", "text": "incidents of discrimination. For example, in Schwapp, the Court of Appeals reversed the district court’s grant of summary judgment where plaintiff, the first African-American police officer employed by the town of Avon, alleged that he was subjected to ten racially hostile incidents during a ten-month period, including his fellow officers’ repeated use of the term “nigger” in his presence and the distribution of a racially offensive joke involving the term “nigger”. 118 F.3d at 108. When Schwapp complained about these incidents to his supervisor, he was told that he “had to understand the history of an all white male department and that at one time all the crimes in Avon were committed by blacks and that guys started to stereotype people.” Id. Alternatively, the plaintiff in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir.1995), alleged a single instance of sexual harass ment, namely that she was sexually assaulted by two of her supervisors. The Court of Appeals reversed ■ the district court’s grant of summary judgment with respect to plaintiffs hostile work environment claim finding that “even a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and creates an abusive work environment for purposes of Title VII liability.” Id. at 1305. The line between “sporadic racial slurs” and a “steady barrage of opprobrious racial comments” is particularly well-drawn in Richardson, the Second Circuit’s most recent formulation of the Title VII racially hostile workplace standard. Richardson involved an African-American plaintiff who alleged that she was subjected to a racially hostile work environment while employed by the New York State Department of Correctional Service at two different facilities over a period of six years. 180 F.3d at 433. During plaintiffs first assignment at the Auburn Correctional Facility (“ACF”), she was allegedly subjected to the following incidents of explicit racial harassment: [0]ne of [plaintiffs] supervisors referred to Blacks as “apes or baboons” and stated that African-Americans are “so dark you cannot see them anyway,” one coworker referred to her as a “light-skinned nigger,” another called her “nigger,” yet another went out of his way on one occasion" }, { "docid": "3910807", "title": "", "text": "the harassing words or conduct had to be both severe and pervasive” and emphasizing that “one or the other will do” (internal quotation marks omitted)). Nor did the court seem to appreciate that “even one act of harassment will suffice if it is egregious.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir.2000); see also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273 (7th Cir.1991) (“The number of instances of harassment is but one factor to be considered in the examination of the totality of the circumstances.”). Otherwise, how could it have said that “certainly the Plaintiff encountered some race and national origin Mated remarks and graffiti in the Defendant’s workplace; certainly some of these were offensive, unenlightened, and inappropriate; however, they were relatively isolated and infrequent, occurring over the course of more than a year.” We emphasized in Cerros I that “[wjhile there is no ‘magic number’ of slurs that indicate a hostile work environment, we have recognized before that an unambiguously racial epithet falls on the ‘more severe’ end of the spectrum.” 288 F.3d at 1047 (citing Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.1993)). Indeed, we find it difficult to imagine epithets more offensive to someone of Hispanic descent than those directed at Cerros. See, e.g., Torres v. Pisano, 116 F.3d 625, 632-33 (2d Cir.1997) (“[A] reasonable Puerto Rican would find a workplace in which her boss repeatedly called her a ‘dumb spic’ and told her that she should stay home, go on welfare, and collect food stamps like the rest of the ‘spies’ to be hostile.”). While we acknowledge that the “mere utterance of an [ ] epithet which. engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII,” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal citation and quotation marks omitted), we also recognize that pervasiveness and severity “are, to a Certain degree, inversely related; a sufficiently severe episode may occur as rarely as once, while a relentless pattern of lesser" }, { "docid": "2547150", "title": "", "text": "environment. See generally Harris, 510 U.S. at 21-22, 114 S.Ct. at 370-71. The more specific, and more difficult, question that we must answer is whether the behavior was so serious that the finder of fact could label Hostetler’s work environment hostile notwithstanding the limited number of the acts involved. Harassment need not be severe and pervasive to impose liability; one or the other will do. Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir.1999); see Harris, 510 U.S. at 21, 114 S.Ct. at 370; Meritor, 477 U.S. at 66, 106 S.Ct. at 2405. There is no “magic number” of incidents required to establish a hostile environment. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994), citing Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993). We have repeatedly recognized that even one act of harassment will suffice if it is egregious. See Smith, 189 F.3d at 533-34; DiCenso v. Cisneros, 96 F.3d 1004, 1009 (7th Cir.1996); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273-74 & n. 4 (7th Cir.1991); King v. Board of Regents of Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir.1990); Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1186-87 (7th Cir.1986); see also Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir.1990) (implicitly assuming single act sufficient to establish hostile environment). The two principal acts at issue in this case were physical, rather than verbal harassment. Physical harassment lies along a continuum just as verbal harassment does. There are some forms of physical contact which, although unwelcome and uncomfortable for the person touched, are relatively minor. Cumulatively or in conjunction with other harassment, such acts might become sufficiently pervasive to support a hostile environment claim, but if few and far between they typically will not be severe enough to be actionable in and of themselves. A hand on the shoulder, a brief hug, or a peek on the cheek lie at this end of the spectrum. Even more intimate or more crude physical acts — a hand on the thigh, a kiss on" }, { "docid": "8974950", "title": "", "text": "180 F.3d 426, 436 (2d Cir.1999)(internal quotations omitted)(alteration in original). In order to determine whether a workplace is permeated with “severe and pervasive” discrimination sufficient to support a Title VII claim, courts must consider the totality of the circumstances, and they must evaluate “ ‘the quantity, frequency, and severity’ ” of the alleged incidents of discrimination. Id. at 437 (quoting Schwapp, 118 F.3d at 111). “For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that [i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.” Schwapp, 118 F.3d at 110 (internal citations and quotations omitted)(alteration in original). See also Richardson, 180 F.3d at 437 (“Isolated incidents or episodic conduct will not support a hostile work environment claim.”). As a general rule, hostile work environment claims in the Second Circuit have survived summary judgment in cases where the record reflects either a continuous and repeated pattern of explicit racial slurs or a few particularly severe incidents of discrimination. For example, in Schwapp, the Court of Appeals reversed the district court’s grant of summary judgment where plaintiff, the first African-American police officer employed by the town of Avon, alleged that he was subjected to ten racially hostile incidents during a ten-month period, including his fellow officers’ repeated use of the term “nigger” in his presence and the distribution of a racially offensive joke involving the term “nigger”. 118 F.3d at 108. When Schwapp complained about these incidents to his supervisor, he was told that he “had to understand the history of an all white male department and that at one time all the crimes in Avon were committed by blacks and that guys started to stereotype people.” Id. Alternatively, the plaintiff in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir.1995), alleged a single instance of sexual harass ment, namely that she was sexually assaulted by two of her supervisors. The Court of Appeals reversed ■ the district court’s grant of summary judgment with respect to plaintiffs hostile work environment claim" }, { "docid": "2985783", "title": "", "text": "id., the Seventh Circuit has specifically criticized the use of any bright line rule requiring a minimum number of incidents to support a hostile work environment claim as a matter of law. The determination of defendant’s liability “must be made on a case-by-case basis after considering the totality of the circumstances.” Nazaire, 807 F.2d at 1380-1381. Within the totality of circumstances, there is neither a threshold “magic number” of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim. Daniels, 937 F.2d at 1273-1274. Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.1993). Consequently, the Court refuses to conclude that one incident is, as a matter of law, insufficient to support a hostile work environment claim. That conclusion, coupled with the evidence that the incident at issue was especially severe, leads this Court to conclude that Plaintiff has submitted sufficient evidence to create a genuine issue of material fact as to the hostile work environment claim. Courts have pointed out that the racial epithet of “nigger” is particularly offensive. See Rodgers, 12 F.3d at 675. In Rodgers, the Seventh Circuit stated that the word “nigger” is unambiguously racist and held that its use on even a few occasions affects the terms and conditions of the plaintiffs employment severely enough to support a hostile work environment claim. Id. Other courts have also noted the severe impact of the use of the word. See Bailey v. Binyon, 583 F.Supp. 923, 927 (N.D.Ill.1984). “The use of the word ‘niggeP automatically separates the person addressed from every non-black person; this is discrimination per se.” Id. In addition, in the present case, it is undisputed that Vasilopulos not only used the word “nigger” in the exchange with Tutman but Vasilopulos also threatened to kill Tutman. This added physical threat makes the present case distinguishable from cases in which the Seventh Circuit has held that there was no hostile work environment as a matter of law. See McKenzie v. Illinois" }, { "docid": "7906347", "title": "", "text": "or the other will do.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir.2000). For Hrobowski to prove that he was exposed to a severe or pervasive hostile environment, he must prove that the words or actions to which he was subjected were both objectively and subjectively hostile. Robinson v. Sappington, 351 F.3d 317, 329 (7th Cir.2003). Considering the evidence that the district court delineated, and that we quoted above, we conclude that a reasonable jury could find that the work environment was objectively hostile. According to Hrobow-ski’s deposition testimony, on which he relied in opposition to Worthington’s motion for summary judgment, he was repeatedly subjected to hearing the word “nigger,” including more than one occasion in which a fellow supervisor suggested that he talk to an employee “nigger to nigger.” Given American history, we recognize that the word “nigger” can have a highly disturbing impact on the listener. Cf. Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 1545, 155 L.Ed.2d 535 (2003) (noting that the Ku Klux Klan vowed to “keep niggers out of your town” as part of its campaign of racial violence and intimidation). Thus, a plaintiffs repeated subjection to hearing that word could lead a reasonable fact-finder to conclude that a working environment was objectively hostile. See, e.g., Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.1993); see also Bailey v. Binyon, 583 F.Supp. 923, 927 (N.D.Ill.1984) (stating that “use of the word ‘nigger’ automatically separates the person addressed from every non-black person”). As to the subjective component of our inquiry, all that Hrobowski has to establish is that he perceived the environment to be hostile or abusive, Haugerud v. Amery Sch. Dist., 259 F.3d 678, 695 (7th Cir.2001). As discussed above, a reasonable jury could find that the words that Hrobowski heard were unwelcome, and therefore there is an issue of material fact regarding subjective hostility. All this said, we still must examine the final element of a hostile environment claim to determine whether there is a basis for attributing liability to Worthington. The standard for employer liability hinges" }, { "docid": "8021634", "title": "", "text": "the district court to be prohibited harassment, even when it did not occur every day. In Shanoff, the plaintiff alleged he was repeatedly harassed with remarks directed towards his race and his religion. The remarks included referring to Shanoff as a “haughty Jew,” and stating “I know how to put you Jews in your place.” Shanoff, 258 F.3d at 698-99. In all, Shanoff was subjected to six severe instances of harassment by his supervisor. Despite Shanoffs objections to the harassment, the supervisor demonstrated her “direct, unambiguous hostility to Shanoff because of his race and religion.” Id. at 706. We found that this behavior rose to an objectively hostile work environment. See also Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 673 (7th Cir.1993) (finding an actionable hostile work environment when supervisors and employees referred to an employee by the term “nigger” between five and ten times while he was employed). This is not a case where Cerros was a recipient of insults because of a workplace altercation, cf. Spearman v. Ford Motor Co., 231 F.3d 1080, 1086 (7th Cir.2000); this also is not a case where there were only a few verbal utterances made in the context of office banter, Logan v. Kautex Textron N. Am., 259 F.3d 635, 639; and this case is nothing like Sanders v. Vill. of Dixmoor, 178 F.3d 869, 870 (7th Cir.1999), where there was one isolated racial epithet, in response to the plaintiffs already inappropriate conduct. It appears that the epithets at Steel continued for many months, although this is a matter on which greater clarity from the district court is necessary. Adding up all of the derogatory names directed at Cerros as well as all of the graffiti on the bathroom walls, and coupling that with more information about how frequently or how long the abuse endured, the court might well find that both the pervasiveness and the severity measures are high. These are, to a certain degree, inversely related; a sufficiently severe episode may occur as rarely as once, see Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir.1999), while a" }, { "docid": "6230758", "title": "", "text": "violate Title VII, which does not “impose a code of workplace civility.” See Palesch, 233 F.3d at 567. The burning cross graffiti, however, makes this a closer case, as its symbolism is potentially more hostile and intimidating than the racial slurs. Even a single instance of workplace graffiti, if sufficiently severe, can go a long way toward making out a Title VII claim. Two of our recent cases provide guidance as to the proper significance to be given the graffiti in assessing Mr. Jackson’s claim. Each case is factually similar to the instant case in that the plaintiffs were trying to make out a hostile work environment claim based on evidence that a small number of racial epithets had been uttered in the workplace and racist graffiti had appeared in the bathroom. In Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 844 (8th Cir.2002), “racist graffiti — drawings of ‘KKK,’ a swastika, and a hooded figure— appeared on the walls of one of the men’s restrooms at the plant” and copies of a racially derogatory “poem” were “strewn about the plant.” We held that these alleged incidents of racial harassment by coworkers, which we deemed “inexcusable behavior,” were “neither severe nor pervasive enough to create a hostile work environment.” Id. (internal quotations omitted). On the other hand, in Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 908-10 (8th Cir.2003), we held that a hostile work environment claim was submissible where racial graffiti that included the plaintiffs name written below the phrase “kill all niggers,” the word “coon” written below the plaintiffs name, and a drawing of an ape accompanied by the phrase “all niggers must die” had appeared in a bathroom stall. We distinguished Woodland by characterizing the symbols in the graffiti there as being “generically threatening” as opposed to the “death threat aimed directly and specifically at [the plaintiff in Reedy ],” the severity of which we found to be the dispositive consideration. Id. at 909. Thus, we determined that it was particularly significant that the “message of hate expressed to [the plaintiff in Reedy" }, { "docid": "301661", "title": "", "text": "mere utterance of an ... epithet which engenders offensive feelings in an employee is not sufficient to establish a hostile work environment.” McPhaul v. Bd. of Commissioners of Madison County, 226 F.3d 558, 567 (7th Cir.2000) (quoting Harris v. Fork lift Systems, 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). One utterance alone does not create an objectively hostile work environment. There is no hostile work environment where as here, the harassment about which Weaver complains was not directed at her. Weaver’s clerical staff informed her that they heard Leenheer on a number of occasions refer to Smith and Reeves as “motherfucking black niggers” or “motherfucking niggers.” Moreover, on the single occasion Weaver overheard Leenheer use the racially-tinged offensive words “black motherfuckers”, the words were not directed at her. While certainly relevant to the determination of a hostile work environment claim, when harassment is “directed at someone other than the plaintiff, the ‘impact of [such] ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff.’ ” Id. (quoting Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir.1997)). See also Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 938 & n. 8 (7th Cir.1996). Cf. Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 (7th Cir.1991) (affirming a judgment for hostile work environment plaintiff, noting that harassment was directed at plaintiff personally and for a period of months). We do not mean to hold that a plaintiff can never demonstrate a hostile work environment through second-hand comments or in situations where a plaintiff is not the intended target of the statements. However, what Weaver personally experienced does not amount to an objectively hostile work environment. She heard an offensive term directed at a third person once and only learned from others about other offensive comments directed at third persons. The district court did not err when it dismissed her hostile work environment claim on summary judgment. 2. Weaver and Guerrero’s Retaliation Claims Weaver and Guerrero claim that the defendants retaliated against them by creating and tolerating a hostile" } ]

[ { "docid": "23341694", "title": "", "text": "it appears that the court balanced the value of the evidence against its potential for confusion and tendency to detract from the dignity of the proceedings. See United States v. Daly, 756 F.2d 1076, 1083 (5th Cir.) (affirmed district court’s exclusion of expert testimony as irrelevant because court had sufficiently balanced its value under Rule 403), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 575, 88 L.Ed.2d 558 (1985). Therefore, after thorough review of the record, we defer to the court’s implicit determination that the legal documents inappropriately argue the law and tended to “make a mockery of th[e] courtroom,” and affirm, in the alternative, on those grounds. “[T]he law is given to the jury by the court and not introduced as evidence.... Obviously, it would be most confusing to a jury to have legal material introduced as evidence and then argued as to what the law is or ought to be.” Cooley v. United States, 501 F.2d 1249, 1253-54 (9th Cir. 1974) (excluded portions of Congressional Record, IRS Training Manual and Supreme Court opinions) (cited with approval in United States v. Harrold, 796 F.2d 1275, 1285 (10th Cir.1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987)), cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); see United States v. Mann, 884 F.2d 532, 538 (10th Cir.1989) (cases excluded because defendant’s views more probative than their source); United States v. Hairston, 819 F.2d 971, 973 (10th Cir.1987) (citing with approval, United States v. Kraeger, 711 F.2d 6, 7-8 (2d Cir.1983) (excluded federal court decisions)); United States v. Harrold, 796 F.2d 1275, 1285 (10th Cir.1986) (excluded Supreme Court opinions), cert. denied, 479 U.S. 1037, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987); United States v. Mueller, 778 F.2d 539, 540 (9th Cir.1985) (excluded Supreme Court opinions); see also Specht v. Jensen, 853 F.2d 805, 810 (10th Cir.1988) (“In no instance can a witness be permitted to define the law of the case.”) (en banc), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989). The law is the singular province of the judge." } ]

[ { "docid": "18827585", "title": "", "text": "of securities law, but he did not attempt to apply the law to the facts of the ease or otherwise tell the jury how the case should be decided. This distinguishes Specht v. Jensen, 853 F.2d 805 (10th Cir.1988) (en banc), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989), which held that experts may not testify on an ultimate issue of law. Id. at 809. In Specht the expert “painstakingly developed over an entire day the conclusion that defendants violated plaintiffs’ constitutional rights.” Id. at 808. This court held that permitting the jury to hear this legal conclusion was more than harmless error. Id. at 808-09. But Specht did not answer the question before us—whether testimony concerning the requirements of the law is harmless error if the witness does not attempt to apply the law to the facts of the case. To the extent that the expert accurately discussed the requirements of the law De-Vries suffered no harm. DeVries has not asserted that the expert’s testimony concerning the meaning of the terms “broker-dealer” or “registered representative” and the interplay between various securities acts misstated the law. DeVries has not shown how a correct statement of the law, without a conclusion as to how the law should be applied, affected his defense. We conclude that the admission of expert testimony concerning statutory definitions and the relationship between various securities acts was harmless error. DeVries contends, however, that the expert misstated the law concerning the private offering exemption from the registration requirement. The expert stated that one of the requirements for the private offering exemption was that “you must make a filing on the SEC notifying them that you have availed yourself of the exemption.” (R. V, at 819). This was incorrect. Section 4(2) of the Securities Act of 1933, 15 U.S.C. § 77d(2), exempts from the registration requirements of 15 U.S.C. § 77e “transactions by an issuer not involving any public offering.” An offering is considered private only if limited to investors who have no need for the protection provided by registration. SEC v. Ralston Purina Co.," }, { "docid": "4399460", "title": "", "text": "assistance. Courts proceeding under the Federal Rules of Evidence have demonstrated a reluctance to allow experts determine questions of law. See, e.g., Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir.1988), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989) (“when the purpose of the testimony is to direct the jury’s understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed. In no instance can a witness be permitted to define the law of the case”); Adalman v. Baker, Watts & Co., 807 F.2d 359, 366 (4th Cir.1986) (“the line must be drawn between proper expert evidence as to facts, inferences to be drawn from those facts, and the opinions of the expert, on the one hand, and testimony as to the meaning and applicability of the appropriate law, on the other hand”). The Seventh Circuit has recognized, however, that in highly technical areas of law, the opinion of a properly qualified expert is admissible to determine whether a given course of conduct complied with the law. For example, in United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986), the court found no error in allowing an Internal Revenue Service agent to give an opinion as to the proper tax consequences of a particular action by a taxpayer, or in allowing the agent to offer an analysis of the taxpayer’s action as a necessary precedent to the agent’s evaluation of the tax consequences. The Windfelder court cited with favor the Eleventh Circuit’s decision in United States v. Gold, 743 F.2d 800, 817 (11th Cir.1984), cert. denied 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). In Gold, the court found no error in allowing properly qualified witnesses to testify whether particular claims were eligible for reimbursement under Medicare, as long as the district court properly instructed the jury concerning the weight that should be given expert testimony. The court cannot find that the NCP presents any less technical an issue than do the tax code and Medicare regulations. Accordingly, pursuant to Windfelder and Gold, the court overrules the" }, { "docid": "15394711", "title": "", "text": "variety of illegal activities .... ” United States v. Pinelli, 890 F.2d 1461, 1474 (10th Cir.1989). Given the complexity of the piperidine distribution network, the average person’s unfamiliarity with the workings of that network and the number of people involved with it, “it was well within the discretion of the trial judge to permit such testimony on the theory that [Agent Dockery’s] specialized knowledge would assist the trier-of-fact in understanding the evidence.” Id. at 1474. We also agree that the testimony was properly admitted under Fed.R.Evid. 704, which allows for the admission of opinion testimony even though it “embraces an ultimate issue to be determined by the trier of fact.” A.E. By and Through Evans v. Independent School Dist. No. 25, 936 F.2d 472, 476 (10th Cir. 1991) (citations omitted). Mr. McSwain maintains that Agent Dockery’s reference to the indictment impermissibly told the jury what result to reach. We disagree. Agent Dockery’s testimony did not overstep the bounds of permissible expert testimony because it addressed a specific factual question: that is, Mr. McSwain’s involvement in the piperidine scheme. See Specht v. Jensen, 853 F.2d 805, 809 (10th Cir.1988) (concluding that “the [expert] witness did not invade the court’s authority by discoursing broadly over the entire range of the applicable law” because his testimony “focused on a specific question of fact”). Moreover, the testimony’s probative value in explaining the pi-peridine distribution network outweighed any potential for prejudice. See Fed.R.Evid. 403. D. Singleton claim Mr. McSwain also argues on appeal that the prosecutor violated 18 U.S.C. § 201(c)(2) by entering into a plea agreement with a cooperating defendant. An en banc decision of this court resolved the issue against his position in United States v. Singleton, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, — U.S. -, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). His claim therefore fails. E. Lesser Included Offense Mr. McSwain argues that his conspiracy conviction must be vacated because it is a lesser included offense of a continuing criminal enterprise conviction. See Rutledge v. United States, 517 U.S. 292, 300,116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (holding" }, { "docid": "1637603", "title": "", "text": "that any error did not affect Denver’s substantial rights. See United States v. Drake, 932 F.2d 861, 867 (10th Cir.1991). Virtually the entire contents of the letter were already before the jury. Mr. Early’s assessment of the shooting had been repeatedly read into the record. Moreover, the circumstances of the incident set out in the letter, which recited the eyewitness accounts most favorable to Denver, had also been presented to the jury. Under these circumstances, admission of the letter itself would have added nothing and Denver therefore could not have suffered any prejudice because it was not formally admitted. B. The contours of Denver’s argument with respect to Mr. Fyfe are not entirely clear to us, but Denver apparently is attempting to bring Mr. Fyfe’s testimony within the ambit of Specht v. Jensen, 853 F.2d 805 (10th Cir.1988) (en bane), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989). In that case, we held that the district court committed reversible error in allowing an attorney/expert witness to offer an “array of legal conclusions touching upon nearly every element of the plaintiffs burden of proof.” Id. at 808. We stated that “when the purpose of testimony is to direct the jury’s understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed. In no instance can a witness be permitted to define the law of the case.” Id. at 810. However, we emphasized that the line we were drawing was narrow, recognizing that “a witness may refer to the law in expressing an opinion without that reference rendering the testimony inadmissible.” Id, at 809. “[A]n expert’s testimony is.proper under Rule 702 if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function.” Id. at 809-810. We point out initially that in attempting to apply Specht to the instant ease, Denver fails to recognize that a factor we held critical in Specht is missing here. The expert in Specht was an attorney and his area of expertise was constitutional law. “There is a significant" }, { "docid": "23231094", "title": "", "text": "F.2d 92 (5th Cir.1979) (trial court erred in refusing to let experts on income tax law testify regarding whether failure to report funds received for sale of blood plasma constituted income tax evasion). These cases demonstrate that an expert’s testimony is proper under Rule 702 if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function. However, when the purpose of testimony is to direct the jury’s understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed. In no instance can a witness be permitted to define the law of the case. Plaintiffs seek to avoid this conclusion by arguing the expert testimony here was no different from a medical expert testifying that specific conduct constitutes medical malpractice. We do not believe, however, there is an analog between the testimony of the medical expert and that of the legal expert because the former does not usurp the function of the court. The testimony of the medical expert in plaintiffs’ hypothesis is more like that of the legal expert who explains a discrete point of law which is helpful to the jury’s understanding of the facts. The cross appeal in this case has been left unresolved owing to the panel’s disposition. We therefore remand this matter to the original panel for further consideration. . Specht v. Jensen, 832 F.2d 1516 (10th Cir.1987). . See Specht, 832 F.2d at 1519-20. . When questioned by the court whether the witness would be testifying on \"an area of fact,” plaintiffs’ counsel did not directly answer but explained the witness would render opinions on whether there had been a search, whether there had been consent to the search, whether the consent was voluntary, and whether there were exigent circumstances to permit a warrantless search. Because the testimony was to be based upon hypothetical questions which assumed the existence of the essential facts, we believe there could be no \"area of fact” involved. Thus, contrary to the plaintiffs’ present assertions, counsel’s representation clearly indicated the expert’s testimony would cover only" }, { "docid": "18827584", "title": "", "text": "further contends that the admission of this testimony prejudiced his defense on each count so all of his convictions must be reversed. In this case our review of the district court’s decision to admit the law teacher’s testimony is for plain error. We do not need to decide whether the court committed plain error, however, because DeVries has not shown that the admission of the law teacher’s testimony was more than harmless error. “[E]rror in the admission or exclusion of evidence is harmless if it does not affect the substantial rights of the parties, and the burden of demonstrating that substantial rights were affected rests with the party asserting error.” K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1156 (10th Cir.1985) (citing Fed. R.Evid. 103(a)(1)). A noneonstitutional error is harmless unless it had a substantial influence on the jury’s verdict in the context of the entire ease, or leaves one in grave doubt whether it had such an effect. U.S. v. Short, 947 F.2d 1445, 1455 (10th Cir.1991). The expert discussed several aspects of securities law, but he did not attempt to apply the law to the facts of the ease or otherwise tell the jury how the case should be decided. This distinguishes Specht v. Jensen, 853 F.2d 805 (10th Cir.1988) (en banc), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989), which held that experts may not testify on an ultimate issue of law. Id. at 809. In Specht the expert “painstakingly developed over an entire day the conclusion that defendants violated plaintiffs’ constitutional rights.” Id. at 808. This court held that permitting the jury to hear this legal conclusion was more than harmless error. Id. at 808-09. But Specht did not answer the question before us—whether testimony concerning the requirements of the law is harmless error if the witness does not attempt to apply the law to the facts of the case. To the extent that the expert accurately discussed the requirements of the law De-Vries suffered no harm. DeVries has not asserted that the expert’s testimony concerning the meaning of the" }, { "docid": "16427050", "title": "", "text": "district court, relying on our decision in Compton, admitted Stan Smith’s testimony without explicitly performing a Daubert analysis. We do not believe, however, the bare fact that the district court did not explicitly utilize the Daubert analysis in admitting Stan Smith’s testimony renders the admission erroneous. Kumho teaches that the word Daubert is not talismanic; it simply means that prior to admitting expert testimony, the court must insure the testimony “is not only relevant, but reliable.” Kumho, 526 U.S. at 147, 119 S.Ct. 1167. We believe the district court appropriately exercised its Rule 702 gatekeeping function. First, the district court determined that testimony defining hedonic damages was relevant. As the district court correctly noted, New Mexico state law permits both the recovery of hedonic damages and allows “an economist to testify regarding his or her opinion concerning the economic value of a plaintiffs loss of enjoyment of life.” Sena v. New Mexico State Police, 119 N.M. 471, 892 P.2d 604, 611 (1995), cert. denied, 119 N.M. 389, 890 P.2d 1321 (1995). The district court also made an appropriate decision regarding reliability, excluding the quantification which has troubled both courts and academics, but allowing an explanation adequate to insure' the jury did not ignore a component of damages allowable under state law. Ingersoll-rRand also contends Stan Smith’s explanation of hedonic damages constituted impermissible testimony on an ultimate question of law, violating our admonition that “in no instance can a witness be permitted to define the law of the case.” Specht v. Jensen, 853 F.2d 805, 810 (10th Cir.1988). This rule is not, however, a per se bar on any expert testimony which happens to touch on the law; an expert may be “called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms.” Id. at 809. Expert testimony on legal issues crosses the line between the permissible and impermissible when it “attempt[s] to define the legal parameters within which the jury must exercise its fact-finding function.” Id. at 809-10 (emphasis added). We do not believe Stan Smith’s testimony constitutes" }, { "docid": "11771334", "title": "", "text": "from his creditors to defeat the provisions of the bankruptcy code. Because Mr. Wieland’s testimony did not address the ultimate issue of Mr. Messner’s guilt or innocence, the government contends it was admissible in this instance. We review a district court’s admission of expert testimony for abuse of discretion. United States v. Kunzman, 54 F.3d 1522, 1530 (10th Cir.1995). Though under this standard, we will not reverse the district court without a “definite and firm conviction that [it] made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances,” Moothart, 21 F.3d at 1504, reversal is appropriate when the court fails to consider the applicable legal standard for its discretionary judgment. Summers v. Utah, 927 F.2d 1165, 1168 (10th Cir.1991) (citations omitted). Given our precedent on this issue, we believe the district court abused its discretion in allowing expert legal testimony on a debtor’s post-confirmation duty of disclosure. However, we also believe the error was harmless. In Specht v. Jensen, 853 F.2d 805 (10th Cir.1988) (en banc), we held an attorney called as an expert witness could not state his view of the law governing the verdict because “the judge is the sole arbiter of the law and its applicability.” Id. at 807. While recognizing that legal testimony was not inadmissible in all cases, we explained, “[W]hen the purpose of the testimony is to direct the jury’s understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed. In no instance can a witness be permitted to define the law of the ease.” Id. at 810. Accord United States v. Kingston, 971 F.2d 481, 486 (10th Cir.1992) (“[E]ven expert witnesses are not permitted to give opinions as to what the law is.”). In this instance, the government admits that Mr. Wieland “testified how an undisclosed asset should be reported once a [reorganization] plan has been confirmed.” That being the case, it is evident Mr. Wie-land did in fact state his view of the law governing the jury’s verdict. Because such testimony is impermissible under Specht, it should not have" }, { "docid": "22404198", "title": "", "text": "Mr. Biern’s testimony did not simply tell the jury to reach a particular verdict based on his own say-so. Rather, he carefully explained the source of his extensive knowledge of prime bank frauds and explained what attributes these schemes, in his considerable experience, often share. Although he also opined that any investment program using the word “prime bank” was a fraud and that-the Wealth-Mart trading program did not exist, he did not directly testify that any particular defendant actually violated the law. Even, if his testimony arguably embraced the ultimate issue, such testimony is permissible as long as the expert’s testimony assists, rather than supplants, the jury’s judgment. See Specht v. Jensen, 853 F.2d 805, 808-09 (10th Cir.1988). Finally, any error in admitting the testimony was harmless, because none of the defendants questioned the expert’s conclusion that there was no secret prime bank trading program. No one contended that Wealth-Mart was actually legitimate. The appellants’ defenses focused instead on their alleged lack of knowledge of the fraudulent nature of Wealth-Mart, and Mr. Biern’s direct testimony did not offer an opinion on the defendants’ knowledge or lack thereof, On cross-examination, defense counsel asked whether he thought someone who recruited investors for a prime bank scheme might herself have been duped and genuinely believed in the scheme. Mr. Biern conceded that it was possible, but hard for him to believe. Tr. 839-40. On appeal, Appellants Craft and Griffith object to this testimony, but any error was invited by defense counsel’s question: See Evans, 936 F.2d at 477 (holding that any error prompted by a direct question from defense counsel is harmless). H. Mr. Mathew’s Sentence Mr. Mathew argues that the district court should have granted him a two-level reduction for acceptance of responsibility. Mr. Mathew acknowledges that he put the government to its burden of proof at trial. Nevertheless, he argues that this should not count against him because he was acquitted of the securities fraud charges at trial. He also points out that, before being indicted, he and his lawyer provided information to the government while they were negotiating the possibility" }, { "docid": "23118987", "title": "", "text": "director’s and officer’s indemnity insurance, and professional liability insurance. We agree that merely being a lawyer does not disqualify one as an expert witness. Lawyers may testify as to legal matters when those matters involve questions of fact. See e.g., Huddleston v. Herman & MacLean, 640 F.2d 534, 552 (5th Cir. Unit A March 1981), aff'd in part, rev’d in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)(lawyer could testify that language in a boilerplate contract was standard because the effect of the language went to scienter). However, “it must be posited as an a priori assumption [that] there is one, but only one, legal answer for every cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.” Specht v. Jensen, 853 F.2d 805, 807 (10th Cir.1988) (internal citations omitted). The Specht case involved a warrantless search. There, the plaintiffs expert witness testified that warrantless searches were unlawful, that the defendants committed a war-rantless search, that the only possible exception was unavailable, and that the acts of an individual could be imputed to the accompanying officer under § 1983. Id. at 808. The Tenth Circuit held that such testimony was not only inadmissible but harmful. The Court stated that while experts could give their opinions on ultimate issues, our legal system reserves to the trial judge the role of deciding the law for the benefit of the jury. Id. at 808-09. Moreover, allowing attorneys to testify to matters of law would be harmful to the jury. Id. at 809. First, the jury would be very susceptible to adopting the expert’s conclusion rather making its own decision. There is a certain mystique about the word “expert” and once the jury hears of the attorney’s experience and expertise, it might think the witness even more reliable than the judge. Id. Second, if an expert witness were allowed to testify to legal questions, each party would find an expert who would state the law in the light most favorable" }, { "docid": "22847205", "title": "", "text": "1287 (9th Cir.1993) (citations and quotation marks omitted). Defendants contend that Caliri’s testimony that Defendants failed to comport with industry standards inappropriately reached legal conclusions on the issue of bad faith and improperly instructed the jury on the applicable law. This argument is unavailing. Caliri’s testimony did not improperly embrace the issue of bad faith under Fed.R.Evid. 704(a). While Caliri’s testimony that Defendants deviated from industry standards supported a finding that they acted in bad faith, Caliri never testified that he had reached a legal conclusion that Defendants actually acted in bad faith (i.e., an ultimate issue of law). See Ford v. Allied Mut. Ins. Co., 72 F.3d 836, 841 (10th Cir.1996) (concluding that “expert witness for [the defendant] was permitted to testify” to “the issue of bad faith ” by showing that the defendant relied on both “Iowa law” and “industry practice that before there is payment ..., one looks at the total coverage available at the time of the accident” (emphasis added)). Moreover, Caliri’s testimony did not improperly usurp the court’s role by instructing the jury as to the applicable law. Although Caliri’s testimony that Defendants departed from insurance industry norms relied in part on his understanding of the requirements of state law, specifically California’s Unfair Settlement Claims Practice § 2695, “a witness may refer to the law in expressing an opinion without that reference rendering the testimony inadmissible. Indeed, a witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms.” Specht v. Jensen, 853 F.2d 805, 809 (10th Cir.1988). Caliri’s references to California statutory provisions — none of which were directly at issue in the case — were ancillary to the ultimate issue of bad faith. The district court therefore did not abuse its discretion in concluding that Cali-ri’s testimony did not improperly invade the province of the jury or the court. c. Reliability Rule 702 allows admission of “scientific, technical, or other specialized knowledge” by a qualified expert if it will “assist the trier of fact to understand the" }, { "docid": "6098844", "title": "", "text": "substantial part to the meaning and applicability of [law]. This flies squarely in the face of the precedent — and the logic of that precedent ....”). Courts make one exception to this strict rule — when interpreting foreign law, expert legal opinion may be allowed. See Nieves-Villanueva, 133 F.3d at 99; Marx & Co., 550 F.2d at 510. Experts may also give limited testimony on mixed questions of law and fact, but the testimony must remain focused on helping the jury or judge understand particular facts in issue and not opine on the ultimate legal conclusion. See, e.g., In re Air Disaster at Lockerbie, Scotland, 37 F.3d 804, 826-27 (2d Cir.1994) (holding that expert’s testimony that defendants engaged in “fraud” and “deceit” was admissible because the words were used in colloquial fashion, but statement that defendants violated federal regulations was inadmissible as a legal conclusion); Specht, 853 F.2d at 809-10 (discussing the distinction). The question presented on the recusal motion is whether 28 U.S.C. § 455 requires this Court to disqualify itself. This decision involves nothing more than interpreting the statute given certain undisputed facts; it is solely a question of law. See Jefferson County v. Acker, 92 F.3d 1561, 1581 (11th Cir.1996) (en banc), vacated on other grounds, 520 U.S. 1261, 117 S.Ct. 2429, 138 L.Ed.2d 191 (1997) (“Whether a judge is disqualified, that is, must not take part in deciding a case, is a question of law.”); In re City of Houston, 745 F.2d 925, 927 (5th Cir.1984) (“The issue of judi cial disqualification is solely one of law.”)- Given that expert opinion may not address issues of law, it follows that expert opinion on a recusal motion cannot be admitted unless it involves the rare case where a fact is in dispute. As defendants concede, this is not such a case. See Moving Underwriters’ Memorandum of Law in Support of-Motion to Submit Declarations of Professors Hazard and Wolfram (“Def.Mem.”), at 6 n. 3 (“Here, of course, the Declarations are based on undisputed facts ....”). The only opinion that this Court has found addressing the issue of expert" }, { "docid": "23231089", "title": "", "text": "the Sixth Circuit reversed the trial court’s decision to allow a bankruptcy judge to testify regarding his interpretation of the Bankruptcy Act and his own orders. “It is the function of the trial judge to determine the law of the case,” the court stated. “It is impermissible to delegate that function to a jury through the submission of testimony on controlling legal principles.” 729 F.2d at 387. The courts in these decisions draw a clear line between permissible testimony on issues of fact and testimony that articulates the ultimate principles of law governing the deliberations of the jury. These courts have decried the latter kind of testimony as directing a verdict, rather than assisting the jury’s understanding and weighing of the evidence. In keeping with these decisions, we conclude the expert in this case was improperly allowed to instruct the jury on how it should decide the ease. The expert’s testimony painstakingly developed over an entire day the conclusion that defendants violated plaintiffs’ constitutional rights. He told the jury that war-rantless searches are unlawful, that defendants committed a warrantless search on plaintiffs’ property, and that the only applicable exception to the warrant requirement, search by consent, should not vindicate the defendants because no authorized person voluntarily consented to allow a search of the premises. He also stated that the acts of the private individual could be imputed to the accompanying police officer to constitute sufficient “state action” for a § 1983 claim. By permitting the jury to hear this array of legal conclusions touching upon nearly every element of the plaintiffs’ burden of proof under § 1983, the trial court allowed the expert to supplant both the court’s duty to set forth the law and the jury’s ability to apply this law to the evidence. Given the pervasive nature of this testimony, we cannot conclude its admission was harmless. There is a significant difference between an attorney who states his belief of what law should govern the case and any other expert witness. While other experts may aid a jury by rendering opinions on ultimate issues, our system reserves to" }, { "docid": "23231095", "title": "", "text": "hypothesis is more like that of the legal expert who explains a discrete point of law which is helpful to the jury’s understanding of the facts. The cross appeal in this case has been left unresolved owing to the panel’s disposition. We therefore remand this matter to the original panel for further consideration. . Specht v. Jensen, 832 F.2d 1516 (10th Cir.1987). . See Specht, 832 F.2d at 1519-20. . When questioned by the court whether the witness would be testifying on \"an area of fact,” plaintiffs’ counsel did not directly answer but explained the witness would render opinions on whether there had been a search, whether there had been consent to the search, whether the consent was voluntary, and whether there were exigent circumstances to permit a warrantless search. Because the testimony was to be based upon hypothetical questions which assumed the existence of the essential facts, we believe there could be no \"area of fact” involved. Thus, contrary to the plaintiffs’ present assertions, counsel’s representation clearly indicated the expert’s testimony would cover only questions of law. . Indeed, one is constrained to ask why it is helpful to the jury to present expert testimony on the law if the witness himself states, as he did here, that anything he says is subject to correction by the judge. Is this not more confusing than helpful? The question is rhetorical and stands as further example why a lawyer's testimony on ultimate issues of law is improper. . By contrast, the expert in the instant case did not testify on issues of fact because he based his opinions on hypothetical facts. The expert added nothing to resolve the salient factual issues of the case. SEYMOUR, Circuit Judge, with whom McKAY, Circuit Judge, joins, dissenting. In testifying here, the expert, Daniel Sears, followed a format which is expressly contemplated by the Federal Rules of Evidence and is typical of expert testimony in general: Sears gave “a dissertation or exposition of ... principles relevant to the case,” and he took “the further step of suggesting the inference which should be drawn from applying" }, { "docid": "6098843", "title": "", "text": "reasonableness and foreseeability of the casual workers’ reliance were matters of law for the court’s determination. As such, they were inappropriate subjects for expert testimony.”); United States v. Leo, 941 F.2d 181, 196 (3rd Cir.1991) (stating that “it is not permissible for a witness to testify as to the governing law”); Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir.1990) (“A witness also may not testify to the legal implications of conduct; the court must be the jury’s only source of law.”); Specht v. Jensen, 853 F.2d 805, 807 (10th Cir.1988) (en banc) (“There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.... To allow anyone other than the judge to state the law would violate the basic concept.”) (quotation marks and citation omitted); Adalman v. Baker, Watts & Co., 807 F.2d 359, 368 (4th Cir.1986) (“From beginning to end, it is obvious that Appellants proffered [the person] as an expert witness to testify in substantial part to the meaning and applicability of [law]. This flies squarely in the face of the precedent — and the logic of that precedent ....”). Courts make one exception to this strict rule — when interpreting foreign law, expert legal opinion may be allowed. See Nieves-Villanueva, 133 F.3d at 99; Marx & Co., 550 F.2d at 510. Experts may also give limited testimony on mixed questions of law and fact, but the testimony must remain focused on helping the jury or judge understand particular facts in issue and not opine on the ultimate legal conclusion. See, e.g., In re Air Disaster at Lockerbie, Scotland, 37 F.3d 804, 826-27 (2d Cir.1994) (holding that expert’s testimony that defendants engaged in “fraud” and “deceit” was admissible because the words were used in colloquial fashion, but statement that defendants violated federal regulations was inadmissible as a legal conclusion); Specht, 853 F.2d at 809-10 (discussing the distinction). The question presented on the recusal motion is whether 28 U.S.C. § 455 requires this Court to disqualify itself. This decision involves" }, { "docid": "1637604", "title": "", "text": "conclusions touching upon nearly every element of the plaintiffs burden of proof.” Id. at 808. We stated that “when the purpose of testimony is to direct the jury’s understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed. In no instance can a witness be permitted to define the law of the case.” Id. at 810. However, we emphasized that the line we were drawing was narrow, recognizing that “a witness may refer to the law in expressing an opinion without that reference rendering the testimony inadmissible.” Id, at 809. “[A]n expert’s testimony is.proper under Rule 702 if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function.” Id. at 809-810. We point out initially that in attempting to apply Specht to the instant ease, Denver fails to recognize that a factor we held critical in Specht is missing here. The expert in Specht was an attorney and his area of expertise was constitutional law. “There is a significant difference between an attorney who states his belief of what law should govern the case and any other expert witness.” Id. at 808. Here, in contrast, Mr. Fyfe had a doctorate in criminal justice and was an expert in police training, tactics, and the use of deadly force. Courts generally allow experts in this area to state an opinion on whether the conduct at issue fell below accepted standards in the field of law enforcement. See, e.g., Samples v. City of Atlanta, 916 F.2d 1548, 1551-52 (11th Cir.1990); see also Wade v. Haynes, 663 F.2d 778, 783-84 (11th Cir.1981) (expert in prison policy allowed to give 'opinion on whether conduct was prudent prison administration), aff'd sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); cf. United States v. Myers, 972 F.2d 1566, 1577-78 (11th Cir.1992) (lay. witness allowed to testify on whether use of force reasonable or justified), cert. denied, — U.S. -, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993). Denver argues that Mr. Fyfe’s testimony was improper under" }, { "docid": "12844879", "title": "", "text": "inapposite here. As we already have explained, the defendants proposed to call Piñot as a fact witness, not an expert witness under Rule 702. See supra Part 11(B)(1). The fact that Piñot was a percipient witness makes a world of difference. Assuming for the sake of argument that Nieves-Villanueva announced a general evidentiary rule to the effect that legal opinion testimony is per se inadmissible, that rule would not be implicated in these circumstances. After all, the rationale for excluding legal opinions is directed at excluding testimony as to ultimate legal conclusions. Thus, courts have held that a witness cannot testify that an appointment was made in violation of the law, e.g., Nieves-Villanueva, 133 F.3d at 99, or that a search was unreasonable and thus illegal, e.g., Specht, 853 F.2d at 808, or that contractual obligations have a particular legal effect, e.g., Marx & Co., 550 F.2d at 508. But courts “draw a clear line between permissible testimony on issues of fact and testimony that articulates the ultimate principles of law governing the deliberations of the jury.” Specht, 853 F.2d at 808. Piñot’s proposed testimony clearly falls on the sunny side of this line. While his testimony was not admissible for the purpose of proving what obligations the law imposed upon the Mayor, it was admissible to show the Mayor’s understanding at the time and his ensuing state of mind. See United States v. Cavin, 39 F.3d 1299, 1309 (5th Cir.1994). Of course, Piñot’s testimony — like all testimony — would have been subject to the balancing test mandated by Evidence Rule 403 (which allows exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of ... confusion of the issues[ ].or misleading the jury”). But the district court did not rely upon Rule 403 in excluding Piñot’s testimony, and, in all events, the wholesale exclusion of that testimony cannot be justified under Rule 403. The Rule 403 balancing test applies statement by statement. See Kassel v. Gannett Co., 875 F.2d 935, 952 (1st Cir.1989) (noting that the trial court “must balance the prejudicial effect and" }, { "docid": "9576631", "title": "", "text": "do not believe that the trial court abused its discretion in refusing to admit this evidence. Rule 704 of the Federal Rules of Evidence allows an expert to offer opinion evidence even if it “embraces an ultimate issue to be determined by the trier of fact.” Fed. R.Evid. 704. The Federal Rules, however, do not allow the admission of all such opinion evidence. The Rules do not, for example, allow an expert to offer testimony that merely tells the jury what result they should reach or testimony phrased in terms of “inadequately explored legal criteria.” Fed. R.Evid. 704 adv. comm. note. Expert testimony of this type is often excluded on the grounds that it states a legal conclusion, usurps the function of the jury in deciding the facts, or interferes with the function of the judge in instructing the jury on the law. See, e.g., Specht v. Jensen, 853 F.2d 805, 808 (10th Cir.1988), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989); but see id. at 814 (Seymour, J., dissenting) (more appropriate rationale for exclusion of such evidence is lack of helpfulness to jury). When an expert merely states an opinion on an ultimate issue without adequately exploring the criteria upon which the opinion is based, the jury is provided with no independent means by which it can reach its own conclusion or give proper weight to the expert testimony. Cf. Karns v. Emerson Elec. Co., 817 F.2d 1452, 1459 (10th Cir.1987) (expert explained bases for opinion in sufficient detail to allow jury to make independent judgment). In this ease, defense counsel sought to admit testimony by the expert as to whether the transactions in question constituted misapplication or concealment. Whether or not this proffered testimony amounts to a legal conclusion, devoid of helpfulness to the trier of fact, is a close question. Given the broad discretion afforded the trial court, we cannot conclude that the trial court erred in refusing to admit this evidence. This is especially true given the pains the trial court took to provide defense counsel with alternative means by the which" }, { "docid": "22404197", "title": "", "text": "providing any explanation of the criteria on which that opinion is based or any means by which the jury can exercise independent judgment. See United States v. Simpson, 7 F.3d 186, 188-89 (10th Cir.1993). Expert testimony of this sort is sometimes excluded on the ground that it “usurps the function of the jury in deciding the facts, or interferes with the function of the judge in instructing the jury on the law.” Id. at 188. We therefore interpret the appellants’ argument as contending that the district judge should have excluded Mr. Biern’s testimony on this basis. We review a trial court’s admission of expert testimony for abuse of discretion, and we will reverse only when that decision is “manifestly erroneous.” Id. In addition, erroneous admission of expert testimony that does not affect substantial rights and results in actual prejudice is deemed harmless and does not warrant reversal. A.E., By and Through, Evans v. Independent School District No. 25, 936 F.2d 472, 476 (10th Cir.1991). Under this standard of review, we must reject the appellants’ claim. Mr. Biern’s testimony did not simply tell the jury to reach a particular verdict based on his own say-so. Rather, he carefully explained the source of his extensive knowledge of prime bank frauds and explained what attributes these schemes, in his considerable experience, often share. Although he also opined that any investment program using the word “prime bank” was a fraud and that-the Wealth-Mart trading program did not exist, he did not directly testify that any particular defendant actually violated the law. Even, if his testimony arguably embraced the ultimate issue, such testimony is permissible as long as the expert’s testimony assists, rather than supplants, the jury’s judgment. See Specht v. Jensen, 853 F.2d 805, 808-09 (10th Cir.1988). Finally, any error in admitting the testimony was harmless, because none of the defendants questioned the expert’s conclusion that there was no secret prime bank trading program. No one contended that Wealth-Mart was actually legitimate. The appellants’ defenses focused instead on their alleged lack of knowledge of the fraudulent nature of Wealth-Mart, and Mr. Biern’s direct testimony" }, { "docid": "23118986", "title": "", "text": "evidence of agency or a nominee relationship; therefore, we have no basis upon which to reverse the district court. We affirm the district court’s grant of summary judgment on all trust fund claims based upon transfers FCA made before October 27,1989. E. Director Misconduct Appellant argues that the district court erroneously excluded or ignored his evidence of director misconduct. In the case of William Knepper, one of Appellant’s experts, the court ruled the proffered testimony inadmissible because Knepper was a lawyer and his testimony would be conclusory and cumulative. The Trustee argues that this was manifest error because the fact that Knepper is a lawyer does not per se disqualify him as an expert witness. Rather, the issue is whether Knepper had specialized training, education, and experience that would enable him to assist the jury in determining issues of director misconduct. The Trustee contends that Knepper has the necessary training, education, and experience because Knepper has been practicing law for 60 years, 25 of which were in the fields of corporate officer and director liability, director’s and officer’s indemnity insurance, and professional liability insurance. We agree that merely being a lawyer does not disqualify one as an expert witness. Lawyers may testify as to legal matters when those matters involve questions of fact. See e.g., Huddleston v. Herman & MacLean, 640 F.2d 534, 552 (5th Cir. Unit A March 1981), aff'd in part, rev’d in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)(lawyer could testify that language in a boilerplate contract was standard because the effect of the language went to scienter). However, “it must be posited as an a priori assumption [that] there is one, but only one, legal answer for every cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.” Specht v. Jensen, 853 F.2d 805, 807 (10th Cir.1988) (internal citations omitted). The Specht case involved a warrantless search. There, the plaintiffs expert witness testified that warrantless searches were unlawful, that the defendants" } ]

[ { "docid": "2250006", "title": "", "text": "unclear in what sense the term was used by Congress, see Taylor, 495 U.S. at 598, 110 S.Ct. 2143, or the Sentencing Commission, see United States v. Soto-Sanchez, 623 F.3d 317, 319-21 (6th Cir.2010). Here, the Commission’s intent is clear. “The Guidelines themselves tell us that a conviction for a conspiracy to commit a federal drug trafficking offense will justify the application of the enhancement.” United States v. Rodriguez-Escareno, 700 F.3d 751, 753-54 (5th Cir.2012). Application Note 1 defines “drug trafficking of fense” to include an offense under a federal law that prohibits the manufacture, import, export, distribution, or dispensing of, or the offer to sell a controlled substance, or the possession of a controlled substance with intent to manufacture, import, export, distribute or dispense. U.S.S.G. § 2L1.2, cmt. n. l(B)(iv). A violation of § 841(a)(1) is a federal drug trafficking offense as defined in Application Note 1, and no one disputes it. Application Note 5, in turn clarifies that a conspiracy to commit an offense defined in Note 1 is also a “drug trafficking offense” for purposes of the Guidelines. U.S.S.G. § 2L1.2 cmt. n. 5. The Commission expressly intended that a conviction under 21 U.S.C. § 846 for conspiracy to commit a federal drug offense proscribed by § 841 is a “drug trafficking offense” as defined in the Guidelines. Cf. United States v. Williams, 53 F.3d 769, 770-71 (6th Cir.1995) (treating § 846 conspiracy offenses as “controlled substance offenses” under § 4B1.2). Our conclusion today is similar to that of our sister circuit in Rodriguez-Escareno, 700 F.3d at 754. There, the Fifth Circuit rejected the defendant’s invitation to search for the “generic” meaning of conspiracy and held, “Application Note 5 is a clear statement by the Sentencing Commission that the enhancement applies to conspiracies to commit federal drug trafficking offenses.” Id. at 754. To search for the generic meaning of the term “would only becloud what is clear from the Guideline itself.” Id. We agree. Therefore, we hold that a conviction for a conspiracy under § 846 is categorically a drug trafficking offense and affirm the district court’s" } ]

[ { "docid": "2250007", "title": "", "text": "offense” for purposes of the Guidelines. U.S.S.G. § 2L1.2 cmt. n. 5. The Commission expressly intended that a conviction under 21 U.S.C. § 846 for conspiracy to commit a federal drug offense proscribed by § 841 is a “drug trafficking offense” as defined in the Guidelines. Cf. United States v. Williams, 53 F.3d 769, 770-71 (6th Cir.1995) (treating § 846 conspiracy offenses as “controlled substance offenses” under § 4B1.2). Our conclusion today is similar to that of our sister circuit in Rodriguez-Escareno, 700 F.3d at 754. There, the Fifth Circuit rejected the defendant’s invitation to search for the “generic” meaning of conspiracy and held, “Application Note 5 is a clear statement by the Sentencing Commission that the enhancement applies to conspiracies to commit federal drug trafficking offenses.” Id. at 754. To search for the generic meaning of the term “would only becloud what is clear from the Guideline itself.” Id. We agree. Therefore, we hold that a conviction for a conspiracy under § 846 is categorically a drug trafficking offense and affirm the district court’s application of § 2L1.2(b)(l)(A)(i)’s sixteen-level enhancement. III. A criminal sentence must be both procedurally and substantively reasonable. United States v. Byrd, 689 F.3d 636, 639 (6th Cir.2012). Claimed procedural errors not raised in the district court are reviewed for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008). Sanbria-Bueno concedes that plain error review applies to his claim that the district court inadequately explained its reasoning for imposing consecutive sentences. Under this standard of review, the defendant bears the burden of proof and must demonstrate (1) error (2) that is plain and (3) that affects substantial rights. United States v. Murdock, 398 F.3d 491, 496 (6th Cir.2005). An appellate court then may exercise its discretion to notice a forfeited error only if (4) “the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). A. 18 U.S.C. § 3584(a) provides: “If multiple terms of imprisonment are imposed on a defendant at the" }, { "docid": "18086271", "title": "", "text": "must be followed except in the most extraordinary situation where [it] leads to an absurd result contrary to clear legislative intent.” United States v. Holbert, 285 F.3d 1257, 1260 (10th Cir.2002) (quotations and citations omitted). Within § 2L1.2 there are examples of when the Sentencing Commission clearly intended that the analysis stop at a federal statute. As just one of several examples, Application Note l(B)(v) specifically defines “firearm offense” to cover violations of 18 U.S.C. §§ 921, 841(c), 844(h), 924(c), and 929(a). But this narrow approach is not available to us because the reference to “conspiracy” in § 2L1.2 Application Note 5 is not narrowed nor defined by reference to any particular federal statutes. Following the prescribed process in our precedent of Dominguez-Rodriguez is supportive of Martinez-Cruz’s position. But, other circuits have suggested that the Sentencing Commission intended that § 2L1.2 Application Note 5 include federal conspiracy convictions under 21 U.S.C. § 846. However, because we find that the intent of the Sentencing Commission is not clear, we adopt Martinez-Cruz’s arguments and follow prior Tenth Circuit precedent in Dominguez-Rodriguez in applying the categorical approach. b. Martinez-Cruz’s conviction does not match the generic definition of “conspiracy” First, Martinez-Cruz argues that his conviction is not a categorical match for the generic definition of “conspiracy” enumerated in U.S.S.G. § 2L1.2 Application Note 5 because the generic definition of conspiracy requires an overt act whereas the statute he had previously been convicted of — 21 U.S.C. § 846 — has been held not to require proof of an overt act for a conspiracy conviction. United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (holding that, in the context of a conspiracy conviction under § 846, “the Government need not prove the commission of any overt acts in furtherance of the conspiracy”). Second, Martinez-Cruz points to the Ninth Circuit case of United States v. Garcia-Santana, 774 F.3d 528 (9th Cir.2014), which surveyed the states, Model Penal Code (MPC), criminal law treatises, and federal law to determine the generic definition of conspiracy. The Ninth Circuit first cited Taylor for the proposition" }, { "docid": "20950705", "title": "", "text": "violence.”). . Compare Maj. Op. at 906 n. 4 (\"We need not, and do not, consider the meaning of the phrase 'conspiring ... to commit ... a drug trafficking offense’ as it relates to conspiracy convictions under state law, for example.” (quotation marks omitted)) with RodriguezEscareno, 700 F.3d at 754 n. 2 (“We imply no position on the relevance of this reasoning to applying the enhancement to convictions for conspiracies to commit state-law offenses.”). . The Fifth Circuit in Pascacio-Rodriguez provided alternative bases for its holding that a state conviction for conspiracy to commit murder qualified for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii). Compare id. at 367-68 with Maj. Op. at 904 n.3. The Fifth Circuit explained that \"the generic, contemporary meaning of 'conspiracy to commit murder' does not require an overt act” and that the “language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder.” Pascacio-Rodriguez, 749 F.3d at 367-68. Whereas both bases could lead to the same result in the Fifth Circuit, Garcia-Santana already has determined the generic federal definition of conspiracy in our circuit. See Garcia-Santana, 774 F.3d at 537. . Cf. United States v. Gonzalez-Corn, No. 13-50480, - F.3d -, -, -, 2015 WL 4385278, at *1, *3 (9th Cir. July 17, 2015) (declining to apply Taylor in reviewing a prior conviction when that conviction’s \"statutory scheme” was incorporated into the INA, which cross-references 18 U.S.C. § 924(c)(2)). . The authors of Federal Sentencing Law and Practice have observed: [The Fifth Circuit's statement, “There is no reason to search outside the Guidelines for a definition of 'conspiracy' applicable to this enhancement. Application Note 5 is a clear statement by the Sentencing Commission that the enhancement applies to conspiracies to commit federal drug trafficking offenses”] seems to sidestep the issue raised by the defendant, — what does \"conspiracy” mean as used in application note 5? Although a conviction for conspiracy under 21 U.S.C. § 846 does not require proof of an overt act, the general conspiracy offense in 18 U.S.C.A. § 371 does. Application note 5" }, { "docid": "2250004", "title": "", "text": "“Drug Trafficking Offense” as: an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. § 2L1.2 cmt. n. l(B)(iv.) Application Note 5 in turn clarifies that “[p]rior convictions of offenses counted under subsection (b)(1) include the offense of aiding and abetting, conspiring, and attempting, to commit such offenses.” Id. at cmt. n. 5. “In determining the nature of a prior conviction, we apply a ‘categorical’ approach, looking to the statutory definition of the offense and not the particular facts underlying the conviction.” United States v. Rede-Mendez, 680 F.3d 552, 556 (6th Cir.2012) (citing Sykes v. United States, - U.S. -, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011)). “[C]ourts normally start-and stop-by looking at ‘the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Medina-Almaguer, 559 F.3d 420, 422 (6th Cir.2009) (quoting Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607. 602 (1990)). Sanbria-Bueno was convicted under 21 U.S.C. § 846 for conspiracy to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C. § 841. Nevertheless, Sanbria-Bueno contends that the offense was not categorically a “drug trafficking offense” within the meaning of § 2L1.2(b)(l)(A)(i) because a generic conspiracy requires an overt act while § 846 does not. See United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (holding proof of an overt act is not required to establish a violation of § 846). Sanbria-Bueno would have this court apply the analytical framework generally used to determine whether a defendant’s prior state conviction was an offense enumerated in the Guidelines. This approach requires looking at a crime’s “generic” meaning. See Taylor, 495 U.S. at 598, 110 S.Ct. 2143; Rede-Mendez, 680 F.3d at 556. The approach urged by Sanbria-Bueno, however, is only applied to interpret the underlying offense where it is" }, { "docid": "18086265", "title": "", "text": "supervised release. Martinez-Cruz timely appealed. STANDARD OF REVIEW The Tenth Circuit reviews de novo whether a prior offense triggers a sentencing enhancement under U.S.S.G. § 2L1.2(b). United States v. Castillo, 811 F.3d 342, 345 (10th Cir.2015). LEGAL DISCUSSION U.S.S.G. § 2L1.2(b)(l)(B), the guideline for “Unlawfully Entering or Remaining in the United States,” imposes an additional twelve-level enhancement if the defendant had “a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less.” That conviction may arise from “an offense under federal, state, or local law.” U.S.S.G. § 2L1.2 Application Note l(B)(iv). Alternatively, the guideline imposes an eight-level enhancement if the defendant has “a conviction for an aggravated felony.” Application Note 5 to § 2L1.2 states, “Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” (emphasis added). The Application Notes do not further define “conspiring.” Therefore, this opinion will focus on the generic definition of the term “conspiring.” Martinez-Cruz argues that his twelve-level enhancement was unwarranted because, under Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), his prior federal conviction for Conspiracy to Possess a Controlled Substance with Intent to Distribute in Violation of 21 U.S.C. § 846 was not categorically a “drug trafficking offense” because conspiracy under § 846 does not require proof of an overt act — which, Martinez-Cruz argues, is part of the generic definition of “conspiracy” to which § 2L1.2 Application Note 5 refers. However, this is an unsettled issue in the Tenth Circuit, and other circuits to address the issue have disagreed with Martinez-Cruz’s proposed analysis. There are two similar — but varying — strands of precedent on this subject in the Tenth Circuit. This case thus presents a legal conundrum that we must resolve. The analysis of this issue will proceed in four parts: (1) the relevant Tenth Circuit precedent concerning the Guidelines and categorical approach generally; (2) Martinez-Cruz’s proposed analysis and result; (3) the government’s proposed analysis and result (including other circuits’ analy-ses of this issue); and" }, { "docid": "20950689", "title": "", "text": "concept, the use of ‘common sense’ 'is more than just relevant, but required.” United States v. White, 903 F.2d 457, 462 (7th Cir.1990). We reject Rivera-Constantino’s reading of section 2L1.2(b)(l) because “[cjourts ought not read the Guidelines in a way that makes the Sentencing Commission look foolish.” United States v. Turner, 998 F.2d 534, 538 (7th Cir.1993). Our interpretation of section 2L1.2(b)(l) is further supported by an examination of the Sentencing Guidelines as a whole. See United States v. Leal-Felix, 665 F.3d 1037, 1041-42 (9th Cir.2011) (“Interpretation of a word or phrase [in a statute] depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” (alteration in original; citation and internal quotation marks omitted)). The term “conspiracy” is used elsewhere in the Guidelines (and associated commentary and appendices) to encompass a conspiracy conviction under 21 U.S.C. § 846. See, e.g., U.S.S.G. § 2D1.1; U.S.S.G. § 2X1.1. “A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007). Moreover, the two other circuits that have considered this question have both held that the Sentencing Commission intended section 2L1.2(b)(l) to encompass federal drug trafficking conspiracies. The Fifth Circuit has concluded that “[t]here is no reason to search outside the Guidelines for a definition of ‘conspiracy’ applicable to this enhancement” because “Application Note 5 is a clear statement by the Sentencing Commission that the enhancement applies to conspiracies to commit federal drug trafficking offenses.” United States v. Rodriguez-Escareno, 700 F.3d 751, 754 (5th Cir.2012) (footnote omitted). The Sixth Circuit has similarly held that “[a] violation of § 841(a)(1) is a federal drug trafficking offense as defined in Application Note 1” and that “Application Note 5 ... clarifies that a conspiracy to commit an offense defined in Note 1 is also a ‘drug trafficking offense’ for purposes of the Guidelines.” United States v. Sanbria-Bueno, 549 Fed.Appx. 434, 439 (6th" }, { "docid": "19532046", "title": "", "text": "framework \"has serious consequences.\" See infra at 312. However, other circuits have employed our approach in similar circumstances. For example, the Tenth Circuit recently analyzed whether Hobbs Act robbery is a crime of violence under § 4B1.2(a)(2) and stated that \"[o]ur enumerated clause analysis starts with defining Hobbs Act robbery. We next define generic robbery, and then compare the two terms to determine whether the minimum conduct needed to constitute Hobbs Act robbery fits within generic robbery.\" United States v. O'Connor , 874 F.3d 1147, 1154-55 (10th Cir. 2017) ; United States v. Martinez-Cruz , 836 F.3d 1305, 1314 (10th Cir. 2016) (applying categorical approach analysis to determine whether a conviction for possession with intent to distribute marijuana in violation of 21 U.S.C. § 846 was an aggravated felony conviction under the illegal reentry Guideline); see also United States v. Moldanado , 636 Fed.Appx. 807, 812 (2d Cir. 2016) (analyzing whether a conviction under 21 U.S.C. § 843(b) could be a predicate crime under § 4B1.1(a), and concluding that \"[b]ecause § 843(b) contains additional elements not included in the definition of 'controlled substance offense[,]' [it] is broader than the generic version laid out in the Guidelines\"); but see United States v. Rivera-Constantino , 798 F.3d 900, 902-03 (9th Cir. 2015) ; United States v. Sanbria-Bueno , 549 Fed.Appx. 434, 438-39 (6th Cir. 2013) ; Pascacio-Rodriguez , 749 F.3d at 367. In light of this circuit split, we think the dissent's apocalyptic predictions are exaggerated. The dissent concludes that the generic-definition framework is unnecessary because the text, structure, and context of the Guideline make it clear that a conspiracy to commit murder is a crime of violence. In doing so, the dissent makes the issue quite clear by simply waving a magic wand and eliding everything with which it disagrees, including Taylor 's mandate that we consider the elements of a crime, not its label. No clearer example of this tunnel vision can be found than in its failure to apply Dozier , a case interpreting the application of the Guidelines to an inchoate crime. That the Supreme Court is moving" }, { "docid": "20950695", "title": "", "text": "Because I would follow Garcia-Santana, I would hold that where a prior conspiracy conviction under § 846 does not require proof of an overt act, it does not qualify categorically as a drug trafficking offense for purposes of the § 2L1.2(b)(l)(A)(i) enhancement. I therefore would vacate the district court’s sentence, and remand for consideration of whether Rivera-Constantino’s prior conviction under § 846 warrants an eight-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C) as an aggravated felony for “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18),” 8 U.S.C. § 1101(a)(43)(B). 1. The majority recognizes that we already have defined the generic offense of conspiracy, Maj. Op. at 903 (citing Garcia-Santana, 774 F.3d 528), but seeks to avoid applying that definition outside the Immigration and Nationality Act (“INA”) context. The majority, however, fails to distinguish meaningfully the U.S.S.G. § 2L1.2(b)(l)(A)(i) and cmt. n.5 enhancement here from the INA provision interpreted in Garciar-Santana, 8 U.S.C. § 1101(a)(43)(U). Both refer to a class of prior convictions, both refer generically to conspiracy, and both capture for enhancement purposes or collateral consequences prior offenses under federal or state law. Under the INA, “ ‘aggravated felony’ means ... an attempt or conspiracy to commit an offense described in [§ 1101(a)(43)].” § 1101(a)(43)(U). “The term applies to an offense described in th[at] paragraph whether in violation of Federal or State law....” § 1101(a)(43). And “aggravated felony” includes the offense of “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” § 1101(a)(43)(B). Reading that INA provision side-by-side with U.S.S.G. § 2L1.2(b)(l)(A)(i) and cmt. n.5 belies the majority’s view that the provisions are “matei’ially different,” Maj. Op. at 906. Application Note 5 for § 2L1.2 explains: “Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” § 2L1.2 cmt. n.5. In turn, subsection (b)(1) refers, in relevant part, to a class of prior" }, { "docid": "20950686", "title": "", "text": "(9th Cir.2011) (en banc) (per curiam), and abrogated by Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013); cf. United States v. Gonzalez-Corn, No. 13-50480, — F.3d -,-,-, 2015 WL 4385278, at *1, *5 (9th Cir. July 17, 2015) (recognizing that where a “conviction qualifies as an aggravated felony on its face[,] ... there is no need to compare the elements of [a] conviction to the elements of a generic federal offense ... to determine if [the] conviction was for an .aggravated felony” and concluding that the “categorical matching analysis is inapplicable ... because there is nothing to match”). Our dissenting colleague suggests that reliance on the federal definition embodied in 21 U.S.C. § 846 would be “inapposite” because “Congress used the word ‘conspiracy’ both for crimes with an overt act element and for others without such an element” and because “Congress has not supplied a single set of elements that define ‘conspiracy’ for us to use in interpreting U.S.S.G. § 2L1.2 cmt. n.5.” Dissent at 908. But at least with regards to federal drug trafficking conspiracies, Congress surely has provided a single, clear definition: the one articulated in 21 U.S.C. § 846. This, we conclude, was overwhelmingly likely to have been the meaning intended by the Sentencing Commission, notwithstanding the generic meaning of the word “conspiracy” as used in other contexts. Taylor itself is instructive on this point. In Taylor, the Supreme Court began by emphasizing that: [o]n the face of the federal enhancement provision, it is not readily apparent whether Congress intended “burglary” to mean whatever the State of the defendant’s prior conviction defines as burglary, or whether it intended that some uniform definition of burglary be applied to all cases.... And if Congress intended that a uniform definition of burglary be applied, was that definition to be the traditional common-law definition, or [a] broader “generic” definition[) ... or some other definition specifically tailored to the purposes of the enhancement statute? 495 U.S. at 580, 110 S.Ct. 2143 (footnote omitted). Here, in contrast, it is readily apparent that the Sentencing Commission intended section 2L1.2(b)(l)" }, { "docid": "18086280", "title": "", "text": "logic similar to the Ninth Circuit to conclude that it did not have to apply the categorical approach to a conspiracy conviction under § 846. The Sixth Circuit held that “the [Sentencing] Commission’s intent is clear,” because “[t]he Commission expressly intended that a conviction under 21 U.S.C. § 846 for eonspira-cy to commit a federal drug offense proscribed by § 841 is a ‘drug trafficking offense’ as defined in the Guidelines.” Id. at 438-39. But the Sixth Circuit — same as the Ninth and Fifth — went no further in its analysis than proclaiming that it was “clear” that conspiracy convictions under § 846 qualify for enhancement under § 2L1.2. The problem with all three of these cases is that, if the Sentencing Commission “expressly intended” § 846 conspiracy convictions to qualify for enhancement under U.S.S.G. § 2L1.2, the Sentencing Commission could have stated so expressly — i.e., clearly. For instance, U.S.S.G. § 2L1.2 Application Note 5 could have stated that “The term ‘conspiring’ includes, but is not limited to, conspiracy convictions under 21 U.S.C. § 846.” Or it could have simply included a parenthetical after the word conspiring — e.g., “conspiring (whether or not an overt act was required).” But the Sentencing Commission did neither and instead provided a generic, undefined word ripe for the categorical approach. Therefore, we find the government’s cited cases to be unpersuasive. d. Marbinez-Cmz’s proposed analysis should control As discussed above, Martinez-Cruz’s analysis arrives at the logical result through the prescribed legal process. The term “conspiring” is not defined in § 2L1.2 or its application notes, including Application Note 5. The Tenth Circuit applies the categorical approach to generic, undefined terms in the Guidelines. See Dominguez-Rodriguez, 817 F.3d at 1194. We find the analysis of the generic definition of “conspiracy” in Garcia-Santana persuasive. It omitted a discussion of the many federal conspiracy statutes, but federal conspiracy statutes support both requiring and not requiring an overt act. The number of federal statutes allowing for conspiracy convictions without proof of an overt act is much larger than those requiring an overt act, but that by itself" }, { "docid": "18086279", "title": "", "text": "Sentencing Commission, notwithstanding the generic meaning of the word “conspiracy” as used in other contexts. Id. at 904. However, in addition to the obvious omission of 18 U.S.C. § 371 — the general federal conspiracy statute that includes drug crimes as well as non-drug federal crimes and which requires proof of an overt act — the word “conspiring” in Application Note 5 of § 2L1.2 does not refer to just federal drug trafficking crimes. The word “conspiring” applies to all of the crimes listed in § 2L1.2, including any felony, state, or local felony or aggravated felony, some of which require proof of an overt act. Judge Paez also argued that the majority “sidestep[ped]” the applicable Taylor categorical approach. Id. at 906. Judge Paez noted that the majority “disregards [the Ninth Circuit’s] established rule” of applying the categorical approach to determine whether a prior conviction satisfies the requirements of a § 2L1.2 enhancement. Id at 907. In the government’s third case, United States v. Sanbria-Bueno, 549 Fed.Appx. 434 (6th Cir.2013) (unpublished), the Sixth Circuit used logic similar to the Ninth Circuit to conclude that it did not have to apply the categorical approach to a conspiracy conviction under § 846. The Sixth Circuit held that “the [Sentencing] Commission’s intent is clear,” because “[t]he Commission expressly intended that a conviction under 21 U.S.C. § 846 for eonspira-cy to commit a federal drug offense proscribed by § 841 is a ‘drug trafficking offense’ as defined in the Guidelines.” Id. at 438-39. But the Sixth Circuit — same as the Ninth and Fifth — went no further in its analysis than proclaiming that it was “clear” that conspiracy convictions under § 846 qualify for enhancement under § 2L1.2. The problem with all three of these cases is that, if the Sentencing Commission “expressly intended” § 846 conspiracy convictions to qualify for enhancement under U.S.S.G. § 2L1.2, the Sentencing Commission could have stated so expressly — i.e., clearly. For instance, U.S.S.G. § 2L1.2 Application Note 5 could have stated that “The term ‘conspiring’ includes, but is not limited to, conspiracy convictions under 21 U.S.C." }, { "docid": "18086272", "title": "", "text": "Circuit precedent in Dominguez-Rodriguez in applying the categorical approach. b. Martinez-Cruz’s conviction does not match the generic definition of “conspiracy” First, Martinez-Cruz argues that his conviction is not a categorical match for the generic definition of “conspiracy” enumerated in U.S.S.G. § 2L1.2 Application Note 5 because the generic definition of conspiracy requires an overt act whereas the statute he had previously been convicted of — 21 U.S.C. § 846 — has been held not to require proof of an overt act for a conspiracy conviction. United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (holding that, in the context of a conspiracy conviction under § 846, “the Government need not prove the commission of any overt acts in furtherance of the conspiracy”). Second, Martinez-Cruz points to the Ninth Circuit case of United States v. Garcia-Santana, 774 F.3d 528 (9th Cir.2014), which surveyed the states, Model Penal Code (MPC), criminal law treatises, and federal law to determine the generic definition of conspiracy. The Ninth Circuit first cited Taylor for the proposition that “[t]he generic definition of an offense roughly correspond^] to the definitions of [the offense] in a majority of the States’ criminal codes.” Garcia-Santana, 774 F.3d at 534 (citing Taylor, 495 U.S. at 589, 110 S.Ct. 2143). Then, the Ninth Circuit noted that “A survey of state conspiracy statutes reveals that the vast majority demand an overt act to sustain conviction. By our count, thirty-six states do so; if the District of Columbia, Guam, Puerto Rico, and the Virgin Islands are included, then the tally rises to forty of fifty-four jurisdictions.” Id. at 534-35. These state statutes, it should be noted, were general conspiracy statutes — i.e., they applied generally to all crimes within the state. Id. The Ninth Circuit, in Garcia-Santana, also noted that the federal government’s general conspiracy statute (18 U.S.C. § 371) requires an overt act and major treatises support an overt act requirement for conspiracy convictions. Id. at 535-36. Thus, the Ninth Circuit held that the generic definition of conspiracy requires an overt act. Id. at 537. The Ninth Circuit’s survey" }, { "docid": "20950693", "title": "", "text": "for which the sentence imposed exceeded thirteen months, then apply the 16-level enhancement.” Anna Natalie Rol, Comment, U.S. vs. Them: A Perspective on U.S. Immigration Law Arising from United. States v. Rosales-Garcia and the Combination of Imprisonment and Deportation, 90 Denv. U.L. Rev. 769, 790 (2012). . 21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. 841(a)(1), in turn, makes it unlawful “for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....” See United States v. O'Brien, 52 F.3d 277, 278 (9th Cir.1995) (“The language of section 846 is clear. 'A person who conspires to distribute a controlled substance described by section 841(a)(1) is subject to the same penalties prescribed for a section 841(a) offense.”). . In the words .of another circuit, we \"discern from the language that the Sentencing Commission used whether it intended for an overt act to be an element of every conspiracy conviction,” rather than by \"employ[ing] the categorical approach to discern the elements of ‘conspiracy.’ ” United States v. Pascacio-Rodriguez, 749 F.3d 353, 358 (5th Cir.2014). . We emphasize that our holding is a narrow one. We need not, and do not, consider the meaning of the phrase “conspiring ... to commit ... a ‘drug trafficking offense’ ” as it relates to conspiracy convictions under state law, for example. We hold only that, in this context, the plain meaning of the language used by the Sentencing Commission was to encompass a prior federal drug conspiracy conviction under 21U.S.C.§ 846. PAEZ, Circuit Judge, dissenting. I respectfully dissent. The majority attempts to distinguish United States v. Garcia-Santana, 774 F.3d 528 (9th Cir.2014), and to sidestep the Taylor categorical approach to hold that a conspiracy conviction under 21 U.S.C. § 846 qualifies categorically as a drug trafficking offense, warranting the sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(i)." }, { "docid": "18086282", "title": "", "text": "is not dispositive because of the narrow nature of many of the federal statutes — here, we are defining conspiracy generally (the states also define conspiracy generally). Of the federal statutes which could have applied to Martinez-Cruz’s conviction, the broadest federal conspiracy statute, § 371, requires proof of an overt act — while the drug statute, § 846, does not. And while the common law of conspiracy did not require an overt act, as noted in Garcia-Santana, most jurisdictions have jettisoned that doctrine. Under the categorical approach, we look to the law’s current state. See Dominguez-Rodriguez, 817 F.3d at 1195 (holding that courts should look to “the generic, contemporary meaning of the offense”). Therefore, we conclude that the generic definition of “conspiracy” requires an overt act. Section 846 does not. See Shabani, 513 U.S. at 10, 115 S.Ct. 382. Martinez-Cruz’s conspiracy conviction under § 846 is a categorical mismatch for the generic definition of “conspiracy” in U.S.S.G. § 2L1.2 Application Note 5 and he should receive an eight-level enhancement instead of twelve. The other circuits to decide this issue held the opposite, that the categorical approach should not apply. But the Fifth Circuit, Sixth Circuit, and Ninth Circuit (in Rivera-Constantino) divined the intent of the Sentencing Commission without offering any evidence of that intent. And while the Sentencing Commission’s intent is still relevant in the Tenth Circuit, we find no evidence of its intent regarding whether a conspiracy conviction requires an overt' act — except for the plain language of the guideline, which uses a generic, undefined term, ripe for the categorical approach. CONCLUSION Although it pits us against our sister circuits, we must follow binding Tenth Circuit precedent and apply the categorical approach to a generic, undefined term in the Guidelines. Martinez-Cruz’s prior conviction for conspiracy to possess with intent to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. § 846, is a categorical mismatch to the generic crime of “conspiracy.” We therefore REVERSE and REMAND for resen-tencing consistent with this opinion. . For ease of reading, we will refer to “conspiracy” rather than \"conspiring.”" }, { "docid": "18086276", "title": "", "text": "generic definition of conspiracy does not require an overt act. But the Fifth Circuit focused on “conspiracy to commit murder” specifically, did not give much weight to the primary federal general conspiracy statute under 18 U.S.C. § 371, and did not give much weight to the more than 2:1 ratio of states that require an overt act for conspiracy. Id. at 368; see also United States v. Martinez-Lugo, 782 F.3d 198, 202 (5th Cir.2015) (holding that the Taylor categorical approach requires courts to look to “state and federal statutes, the Model Penal Code, respected treatises, and dictionaries”). The Fifth Circuit concluded that “there is no basis for concluding that the Sentencing Commission intended to create a dichotomy in § 2L1.2 between conspiracy convictions under federal law and conspiracy convictions under state law” because Application Note 5 does not draw a distinction between state and federal crimes. Pascacio-Rodriguez, 749 F.3d at 367. And it is true that U.S.S.G. § 2L1.2, Application Note l(B)(iv) seeks to reach all offenses “under federal, state, or local law.” But by holding the way it did, the Fifth Circuit may have actually created a distinction between state and federal law rather than avoiding it. Because the Guidelines does not define “conspiracy,” a state conspiracy conviction would also be subject to the categorical approach. Under that approach, the generic definition of “conspiracy,” as noted by the Ninth Circuit in Garcia-Santana, 774 F.3d at 528, requires proof of an overt act. Therefore, under the Fifth Circuit’s approach, state conspiracy convictions and federal conspiracy convictions would be treated differently- — -state conspiracy convictions would require an overt act to qualify for enhancement under U.S.S.G. § 2L1.2 and federal conspiracy convictions would not. In the second case, United States v. Rivera-Constantino, 798 F.3d 900 (9th Cir. 2015), the Ninth Circuit decided whether a conspiracy conviction under § 846 qualified for enhancement under U.S.S.G. § 2L1.2 (the exact same issue as this case). The Ninth Circuit acknowledged its previous opinion in Garcia-Santana regarding the generic definition of conspiracy, but held that it was not applicable because “the clear intent of the" }, { "docid": "18086266", "title": "", "text": "because, under Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), his prior federal conviction for Conspiracy to Possess a Controlled Substance with Intent to Distribute in Violation of 21 U.S.C. § 846 was not categorically a “drug trafficking offense” because conspiracy under § 846 does not require proof of an overt act — which, Martinez-Cruz argues, is part of the generic definition of “conspiracy” to which § 2L1.2 Application Note 5 refers. However, this is an unsettled issue in the Tenth Circuit, and other circuits to address the issue have disagreed with Martinez-Cruz’s proposed analysis. There are two similar — but varying — strands of precedent on this subject in the Tenth Circuit. This case thus presents a legal conundrum that we must resolve. The analysis of this issue will proceed in four parts: (1) the relevant Tenth Circuit precedent concerning the Guidelines and categorical approach generally; (2) Martinez-Cruz’s proposed analysis and result; (3) the government’s proposed analysis and result (including other circuits’ analy-ses of this issue); and (4) why we adopt Martinez-Cruz’s proposed analysis. a. Tenth Circuit precedent concerning the Guidelines and categorical approach There are two major strands of precedent in the Tenth Circuit involving the Guidelines and categorical approach. The first emphasizes the Taylor categorical approach, the second emphasizes the Sentencing Commission’s intent. Recent prec edent, however, focuses on the Taylor categorical approach. The Tenth Circuit recently decided a case that outlines the process for determining whether a previous federal drug conviction qualifies for enhancement under the immigration guideline, U.S.S.G. § 2L1.2(b)(l). In United States v. Dominguez-Rodriguez, 817 F.3d 1190, 1194 (10th Cir.2016), the court held that “[t]o determine whether a prior conviction qualifies as a drug trafficking offense under § 2L1.2(b)(l)(A)(i), a district court must generally follow the categorical approach adopted by the Supreme Court in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).” (quotations and citations omitted, alterations in original). “Under th[is] categorical approach, a court does not look to the facts of the particular case, but rather to the statute" }, { "docid": "18086277", "title": "", "text": "holding the way it did, the Fifth Circuit may have actually created a distinction between state and federal law rather than avoiding it. Because the Guidelines does not define “conspiracy,” a state conspiracy conviction would also be subject to the categorical approach. Under that approach, the generic definition of “conspiracy,” as noted by the Ninth Circuit in Garcia-Santana, 774 F.3d at 528, requires proof of an overt act. Therefore, under the Fifth Circuit’s approach, state conspiracy convictions and federal conspiracy convictions would be treated differently- — -state conspiracy convictions would require an overt act to qualify for enhancement under U.S.S.G. § 2L1.2 and federal conspiracy convictions would not. In the second case, United States v. Rivera-Constantino, 798 F.3d 900 (9th Cir. 2015), the Ninth Circuit decided whether a conspiracy conviction under § 846 qualified for enhancement under U.S.S.G. § 2L1.2 (the exact same issue as this case). The Ninth Circuit acknowledged its previous opinion in Garcia-Santana regarding the generic definition of conspiracy, but held that it was not applicable because “the clear intent of the Sentencing Commission in drafting section 2L1.2 and its accompanying commentary was to encompass a prior federal drug conspiracy conviction under 21 U.S.C. § 846.” Id. at 903. In so finding, the Ninth Circuit argued it followed “traditional rules of statutory construction,” because the “plain meaning of [the] term” conspiring “is readily apparent form the text, context, and structure of the relevant Guidelines provision and commentary.” Id. at 904. Therefore, the generic definition analysis was inapplicable. But the Ninth Circuit, in Rivera-Constantino, never pointed to anything beyond assumptions about the Sentencing Commission’s intent to establish this “plain meaning.” For instance, as Judge Paez pointed out in his dissent in Rivera-Constantino, Congress never provided a clear definition of conspiracy — different federal crimes have different elements. Id. at 907-08. The majority responded to this argument by stating: But at least with regards to federal drug trafficking conspiracies, Congress surely has provided a single, clear definition: the one articulated in 21 U.S.C. § 846. This, we conclude, was overwhelmingly likely to have been the meaning intended by the" }, { "docid": "20950694", "title": "", "text": "\"discern from the language that the Sentencing Commission used whether it intended for an overt act to be an element of every conspiracy conviction,” rather than by \"employ[ing] the categorical approach to discern the elements of ‘conspiracy.’ ” United States v. Pascacio-Rodriguez, 749 F.3d 353, 358 (5th Cir.2014). . We emphasize that our holding is a narrow one. We need not, and do not, consider the meaning of the phrase “conspiring ... to commit ... a ‘drug trafficking offense’ ” as it relates to conspiracy convictions under state law, for example. We hold only that, in this context, the plain meaning of the language used by the Sentencing Commission was to encompass a prior federal drug conspiracy conviction under 21U.S.C.§ 846. PAEZ, Circuit Judge, dissenting. I respectfully dissent. The majority attempts to distinguish United States v. Garcia-Santana, 774 F.3d 528 (9th Cir.2014), and to sidestep the Taylor categorical approach to hold that a conspiracy conviction under 21 U.S.C. § 846 qualifies categorically as a drug trafficking offense, warranting the sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(i). Because I would follow Garcia-Santana, I would hold that where a prior conspiracy conviction under § 846 does not require proof of an overt act, it does not qualify categorically as a drug trafficking offense for purposes of the § 2L1.2(b)(l)(A)(i) enhancement. I therefore would vacate the district court’s sentence, and remand for consideration of whether Rivera-Constantino’s prior conviction under § 846 warrants an eight-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C) as an aggravated felony for “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18),” 8 U.S.C. § 1101(a)(43)(B). 1. The majority recognizes that we already have defined the generic offense of conspiracy, Maj. Op. at 903 (citing Garcia-Santana, 774 F.3d 528), but seeks to avoid applying that definition outside the Immigration and Nationality Act (“INA”) context. The majority, however, fails to distinguish meaningfully the U.S.S.G. § 2L1.2(b)(l)(A)(i) and cmt. n.5 enhancement here from the INA provision interpreted in Garciar-Santana, 8 U.S.C. § 1101(a)(43)(U). Both refer to a" }, { "docid": "20950704", "title": "", "text": "apply to more than just drug trafficking offenses. See U.S.S.G. § 2L1.2(b)(l)(A) (including crimes of violence, firearms offenses, child pornography offenses, national security offenses, human trafficking offenses, alien smuggling offenses, in addition to drug trafficking offenses). In sum, following Garcia-Santana and Taylor to define generic conspiracy recognizes the purpose and structure of the Sentencing Guidelines. For these reasons, I would reverse Rivera-Constaritino’s sentence and remand with directions to the district court to consider in the first instance whether his prior conspiracy conviction under § 846 warrants an eight-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C) as an aggravated felony. . Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). . But see United States v. Taylor, 529 F.3d 1232, 1236 (9th Cir.2008) (“For purposes of USSG § 4B 1.2(a), a state offense qualifies as a crime of violence if the state crime’s definition is coextensive with the crime’s common-law or 'federal' definition.”); id. at n. 2 (\"We use the terms 'federal definition' and 'common-law definition’ interchangeably in the context of crimes of violence.”). . Compare Maj. Op. at 906 n. 4 (\"We need not, and do not, consider the meaning of the phrase 'conspiring ... to commit ... a drug trafficking offense’ as it relates to conspiracy convictions under state law, for example.” (quotation marks omitted)) with RodriguezEscareno, 700 F.3d at 754 n. 2 (“We imply no position on the relevance of this reasoning to applying the enhancement to convictions for conspiracies to commit state-law offenses.”). . The Fifth Circuit in Pascacio-Rodriguez provided alternative bases for its holding that a state conviction for conspiracy to commit murder qualified for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii). Compare id. at 367-68 with Maj. Op. at 904 n.3. The Fifth Circuit explained that \"the generic, contemporary meaning of 'conspiracy to commit murder' does not require an overt act” and that the “language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder.” Pascacio-Rodriguez, 749 F.3d at 367-68. Whereas both bases could lead to the same result in the Fifth Circuit," }, { "docid": "20950700", "title": "", "text": "also relies on a Fifth Circuit opinion, United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir.2012), and an unpublished Sixth Circuit memorandum, United States v. Sanbria-Bueno, 549 Fed.Appx. 434 (6th Cir.2013) (unpublished), that followed the Fifth Circuit’s reasoning. But the Fifth Circuit since has called into question a footnote nearly identical to the majority’s footnote 4. See United States v. Pascacio-Rodriguez, 749 F.3d 353, 367 (5th Cir.2014). “[Tjhere is no basis for concluding that the Sentencing Commission intended to create a dichotomy in § 2L1.2 between conspiracy convictions under federal law and conspiracy convictions under state law.” Id. Thus, the majority leaves to future cases the unenviable task of divining how to make today’s holding a narrow one. 4. Separately, because Congress used the word “conspiracy” both for crimes with an overt act element and for others without such an element, our case law that recognizes when Congress “has already supplied [a federal definition],” Maj. Op. at 904 (quoting Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir.2008) (en banc)) , is inapposite. Congress has not supplied a single set of elements that define “conspiracy” for us to use in interpreting U.S.S.G. § 2L1.2 cmt. n. 5. Compare 21 U.S.C. § 846 (not requiring an overt act) with 18 U.S.C. § 371 (requiring an overt act). “Parallel federal crimes are probative, but not independently determinative, of the contemporary, generic defini tion of an offense.” Garcia-Santana, 774 F.3d at 535. Focusing on what the majority considers the “overwhelmingly likely” intention of the Sentencing Commission “at least with regards to federal drug trafficking conspiracies,” Maj. Op. at 904, disregards Garcia-Santana and the structure of the Sentencing Guidelines. Both require us to determine and apply the generic meaning of “conspiracy.” See Garcia-Santana, 774 F.3d at 535-37 (focusing on “the generic definition of conspiracy”); U.S.S.G. § 2L1.2(b)(l)(A) & cmt. n.5 (requiring application of “conspiring” to not only federal, state, and local drug trafficking offenses, but also to crimes of violence, firearms offenses, child pornography offenses, national security offenses, human - trafficking offenses, and alien smuggling offenses). Although the categorical approach at times is underinclusive," } ]

[ { "docid": "2903607", "title": "", "text": "of the LASH barges to their mother vessels); this collision occurred while Zwaak was performing that contract with respect to barges unconnected with performance of the contract between the carrier and the plaintiff Agrico. The result of the collision was a below waterline hole in the LASH barge CG-063 that caused damage to and loss of part of Agrico’s shipment of urea. Agrico and its compensation carrier, Continental Insurance Company, sued to recover the damages and received judgment in the trial court. The facts with respect to this accident are not in dispute. It is likewise agreed that the claim is governed by the Carriage of Goods by the Sea Act (COGSA), 46 U.S.C. § 1300 et seq. The defendants asserted in the alternative two legal defenses: the “error in navigation\" defense under 46 U.S.C. § 1304(2)(a) and the “Q clause” defense under 46 U.S.C. § 1304(2)(q). The district court denied the first defense because the error in navigation that caused the collision was not that of the laden vessel. The court also denied exoneration through clause (q), which was urged on the basis of Zwaak’s status as an independent contractor and the consequent lack of “actual fault and privity” on the part “of the carrier [or] the agents or servants of the carrier.” 46 U.S.C. § 1304(2)(q). The court found exoneration unavailable because of the contractual relationship between the carrier and the negligent tug that was performing its contract with the carrier at the time of the collision and the carrier’s non-delegable duties under § 1303(2). The district court limited liability, under 46 U.S.C. § 183, to the value of the ATLANTIC FOREST, the LASH barges consigned to the voyage with the plaintiff’s load of urea and the pending cargo of the barges and mother vessel at the time. The defendants ask this court to reverse the district court’s decision that neither of the defenses asserted under COGSA applies or, in the alternative, to reverse the liability limitation on the basis that the value of only the LASH barge CG-063 and its pending cargo should have comprised the limitation" } ]

[ { "docid": "3236520", "title": "", "text": "of 6,606 bags of wheat flour carried on board. (2) The central issue in this matter is whether or not the carrier, Waterman, successfully refuted the prima facie imputation to it of fault in failing under § 3(2) to “properly and carefully carry, keep, care for, and discharge the goods carried” 46 U.S.C.App. § 1303(2). Contending that Waterman did not, Royal concedes that the damage may have occurred when BARGE WA 1-0170 was temporarily moored at pier 15 between April 9th and 10th, but insists that Waterman still remains liable for exposing the cargo to the risk of damage by mooring the barge alongside an unsafe pier. Such action, insists Royal, fails to meet Waterman’s COGSA obligation to keep and care for the cargo. As previously mentioned, photographs taken of pier 15 clearly depict that a portion of the whaling is missing (and that spot, jagged) leaving an unprotected edge consisting of the remaining portion (Tr. 29-30; deft’s exh. L). Indeed, as we have seen, Pryor frankly conceded that this particular spot was not safe for placing a barge alongside the pier (Tr. 155). Furthermore, Conn testified that during periods where the range of tide is at its high point the whaling becomes submerged and thus is nearly invisible (Tr. 34). At Newport News on April 9, high tide occurred at 0214 hours and 1442 hours; on April 10, high tide occurred at 0324 hours and 1556 hours (deft’s exh. R ). The record abundantly establishes that this portion of the pier was an unsafe spot to moor BARGE WA 1-0170. The central issue, then, is whether Waterman, which allegedly towed BARGE WA 1-0170 and damaged its cargo at this demonstrably unsafe section of the pier, committed an error in the navigation of the barge thus excusing Waterman’s carrier liability under COGSA. For purposes of COGSA liability, an error in navigation of the barge was unlikely when BARGE WA 1-0170 was towed by the LADY JANICE from the fleeting area to pier 15 at 1915 hours on April 9, 1988 arriving at 1950 hours (deft’s exh. H). Simply put, the" }, { "docid": "3236485", "title": "", "text": "OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW NEWMAN, Senior Judge of the Court of International Trade, sitting as a District Court Judge by designation: INTRODUCTION Royal Insurance Company of America (“Royal”), an Illinois corporation with office and place of business in New York, brings this admiralty action pursuant to the Carriage of Goods by Sea Act (“COG-SA”), 46 U.S.C.App. § 1300, et seq. (1936), against Waterman Steamship Corporation (“Waterman”), a Delaware corporation also with office and place of business in New York and Amsouth Bank, N.A. (“Am-south”), an Alabama corporation with office and place of business in Alabama, in personas, and the S/S ROBERT E. LEE, S/S STONEWALL JACKSON and Lash BARGE WA 1-0170 (“BARGE WA 1-0170” or “the barge”), in res, seeking to recover damages of $111,989.54 plus interest commencing from April 11, 1988, representing the value of cargo damage to 6,606 bags of wheat flour transported by Waterman from Helena, Arkansas to Berbera, Somalia aboard BARGE WA 1-0170. Engaged in business, inter alia, as an insurer of goods, Royal insured the 6,606 damaged bags against risk of loss or damage during their transportation for The World Food Programme (“WFP”), owner of the shipment which is the subject matter of this action. On March 2, 1989 Royal paid to WFP the sum of $108,313.00 constituting the insured value of the damaged cargo. As an incident to the payment, WFP subrogated to Royal all of its rights against carriers responsible for damage to the cargo. Seeking damages as subrogee, Royal alleges that Waterman, a common carrier of goods by sea and owner of the Lash vessels S/S ROBERT E. LEE and S/S STONEWALL JACKSON, failed to exercise due diligence in making BARGE WA 1-0170 (owned by Amsouth) seaworthy for the intended voyage, and failed to exercise due care in keeping and caring for the cargo during its period of transportation aboard the barge. See, 46 U.S.C.App. §§ 1303(1), 1303(2) (1936). Waterman seeks dismissal of the complaint responding that BARGE WA 1-0170 was seaworthy at the commencement of the voyage; Also, conceding that negligence by one of tugboats under Waterman’s" }, { "docid": "3236519", "title": "", "text": "predicated on the average air temperature at Newport news is flawed since the air temperature in fact was much more varied from day to day (pltf’s exh. 37). Therefore, argues Waterman, Stauffer’s findings are based upon speculation, and Waterman maintains that the cargo was wetted for only a matter of hours prior to the discovery of the barge puncture. Withal, Waterman’s conclusion is purely speculative. Assuming arguendo that Hamlin’s expert proof in fact approximates the amount of time required to flood the barge, and Stauffer’s most conservative one-day estimate is utilized concerning the amount of time the bags were in a wetted state prior to discovery, the court finds that the net effect in Waterman’s favor is merely a possible increase in the likelihood that the barge was not holed in the fleeting area. But Hamlin’s expert testimony does not advance Waterman’s theory, namely that LADY JANICE was towing BARGE WA 1-0170 from pier 15 to the anchorage area when an error in navigation caused the puncture and water damage resulting in the total loss of 6,606 bags of wheat flour carried on board. (2) The central issue in this matter is whether or not the carrier, Waterman, successfully refuted the prima facie imputation to it of fault in failing under § 3(2) to “properly and carefully carry, keep, care for, and discharge the goods carried” 46 U.S.C.App. § 1303(2). Contending that Waterman did not, Royal concedes that the damage may have occurred when BARGE WA 1-0170 was temporarily moored at pier 15 between April 9th and 10th, but insists that Waterman still remains liable for exposing the cargo to the risk of damage by mooring the barge alongside an unsafe pier. Such action, insists Royal, fails to meet Waterman’s COGSA obligation to keep and care for the cargo. As previously mentioned, photographs taken of pier 15 clearly depict that a portion of the whaling is missing (and that spot, jagged) leaving an unprotected edge consisting of the remaining portion (Tr. 29-30; deft’s exh. L). Indeed, as we have seen, Pryor frankly conceded that this particular spot was not safe" }, { "docid": "3236500", "title": "", "text": "LADY JANICE, owned by Eastern Shore, was navigating BARGE WA 1-0170 from pier 15 when the barge was holed, and that the resulting puncture was due to an error in navigation on the part of the crew of LADY JANICE. Allegedly, the barge’s starboard side aft was pressed against a submerged horizontal section of wood used for reinforcement of the pier called a “whaling,” causing an indent and a puncture just forward of the barge's lifting post (Tr. 73; deft’s post-trial brief at 3). Pryor corroborated Conn’s opinion, predicated upon Pryor’s scrutiny of photographs of pier 15 that he first became aware of during the course of discussions the day before the commencement of trial (Tr. 131). In addition to the fact testimony of Conn and Pryor, Waterman’s theory depends upon a photograph of the damage to BARGE WA 1-0170 (deft’s exh. Z) and photographs of Pier 15 (deft’s exh. L, 0). Finally, Waterman also relies upon the expert testimony of Professor Norman A. Hamlin (“Hamlin”) and the latter’s calculations estimating the time required to flood the barge following penetration of the shell plating and the quantity of water which entered the barge. Based on the totality of the evidence it submitted, Waterman insists that the damage could only have been sustained at pier 15 “while the barge was moving forward and while a pressure was being applied sideways” (deft’s post-trial brief 9). Waterman concludes that “only a tugboat moving the barge forward and turning the head of the barge away from the pier at the same time could exert the forces to press the starboard aft side of the barge against the whaling” (Id.). In support of its allegation regarding navigational error on the part of LADY JANICE, Waterman refers the court to the general legal proposition cited in Wirth, Ltd. v. S.S. ACADIA FOREST, 537 F.2d 1272, 1279 (5th Cir.1976), reh’g. denied, 541 F.2d 281 (5th Cir.1976). In Wirth, the court states that “a navigational error committed by the captain or crew of the tug responsible for the movement of [a] LASH barge, which error results in damage" }, { "docid": "3236487", "title": "", "text": "direction caused damage to BARGE WA 1-0170 and its cargo, Waterman claims excusal from liability pursuant to the COGSA defense of error in the navigation and management of the barge. See, 46 U.S.C.App. §§ 1304(1), 1304(2)(a) (1936). Maritime jurisdiction exists under 28 U.S.C. § 1333 (1988). In accordance with Fed.R.Civ.P. 52(a), the court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT AND CONCLUSIONS OF LAW Background Shipment from Helena .to Newport News On February 2,1988 Waterman delivered BARGE WA 1-0170 to the shipper in Helena for loading, and on February 5, 1988 Waterman conducted an inspection of the barge indicating it to' be clean, dry and without leaks (deft’s exh. E). Further on February 5, WFP delivered to Waterman a shipment of 27,036 bags of wheat flour, then in apparent good order and condition, for carriage by water from Helena to Berb-era and thence delivery to WFP representatives. Of the 27,036 bag shipment, BARGE WA 1-0170 was loaded with 7,482 bags weighing 369.09 long tons and was drawing 8'6%\", the barge’s maximum salt water draft when fully loaded with cargo (Tr. 168). Subsequently, Waterman issued its bill of lading number 5, dated March 5, 1988, acknowledging the apparent good order and condition of the shipment and its undertaking to carry the shipment. BARGE WA 1-0170 was towed from Helena on February 7 by the tug boat GIRLIE KNIGHT arriving the next day in New Orleans, Louisiana; on March 5, BARGE WA 1-0170 was loaded on-board S/S ROBERT E. LEE for carriage to Newport News, Virginia. S/S ROBERT E. LEE arrived with its cargo at Newport News on March 9. Newport News Pier 15 and Fleering Area At Newport News, BARGE WA 1-0170 and other Lash barges were discharged without incident from S/S ROBERT E. LEE. On March 9 at 1725 hours, BARGE WA 1-0170 arrived at the C & 0 coal pier at Newport News Point (“pier 15”) towed by the tug boat MISS OPAL. At 2215 hours MISS OPAL further towed the barge to the M & W Marine Services, Inc. mooring (“fleeting area”)" }, { "docid": "3236497", "title": "", "text": "Royal has sustained its burden of making a prima facie case regarding Waterman’s liability for the damage to the cargo on-board BARGE WA 1-0170. The parties stipulated that WFP delivered to Waterman a shipment of 27,036 bags of wheat flour, then in apparent good order and condition, for carriage by water to Berbera and delivery to WFP representatives; that Waterman issued its bill of lading acknowledging the apparent good order and condition of the cargo at the time of shipment; and that the cargo was out-turned in a partially damaged condition (PTO 2-3). Error in Navigation After the cargo owner (Royal) carries the prima facie burden of demonstrating clean delivery and cargo damage during transport or upon discharge, the order of proof shifts to the ocean carrier (Waterman) to affirmatively show by “significant probative evidence” that it exercised due diligence under 46 U.S.C.App. § 1303(2) which states: [t]he carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried (46 U.S.C.App. § 1303(2) (1936)) or failing the exercise of such due diligence, that any negligent conduct resulting in damage to the cargo falls under one of the excepted causes of § 1304(2). Sankyo Seiki (Am.), Inc. v. S.S. \"KOREAN LEADER”, 556 F.Supp. 337, 340, 1984 AMC 1787, 1790 (S.D.N.Y.1982), aff'd mem., 723 F.2d 895, 1984 AMC 1796 (2d Cir.1983); M.W. Zack Metal Co. v. S.S. BIRMINGHAM CITY, 311 F.2d 334, 337 (2d Cir.1962), cert. denied, 375 U.S. 816, 84 S.Ct. 50, 11 L.Ed.2d 51 (1963). Here, Waterman maintains exercising due diligence pursuant to the requirements of § 1303(2), but admits that a tugboat under Waterman’s direction negligently navigated BARGE WA 1-0170 and damaged its cargo. For this reason, Waterman seeks to limit its liability relying on § 1304(2)(a) which states that a carrier shall not be responsible for the damage to cargo arising or resulting from an: [a]ct, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship (46 U.S.C.App. § 1304(2)(a) (1936)). Significantly, the reverse side of the bill" }, { "docid": "3236523", "title": "", "text": "clear lack of certainty respecting when BARGE WA 1-0170 may have been engaged in navigation. Indeed, in various portions of its brief Waterman inconsistently suggests that the barge was towed from the pier at 1230 hours on April 10, (deft’s post-trial brief 9); alternatively, that it was towed sometime between 1230 and 1415 hours on April 10 (Id., 10); or finally, that the barge was towed sometime during the afternoon of that date (Id., 3). Undoubtedly, the barge was towed at some point on April 10. However, Eastern Shore’s tug boat log for LADY JANICE on April 10 (deft’s exh. H), definitively contradicts Waterman’s contention that LADY JANICE was navigating BARGE WA 1-0170 during one of the above hypothesized time periods. Second, Waterman failed to present the necessary evidence respecting which tug boat, if any, may have been navigating the barge at the time of the holing, or for that matter whether or not BARGE WA 1-0170 was actually being navigated at all when it was holed. It bears reiteration that under the COGSA defense of error in navigation the burden lies with the carrier, Waterman, to provide the requisite affirmative credible evidence documenting that BARGE WA 1-0170 was being navigated at the time of the holing and that the hole was due to an error in navigation. Agrico Chem. Co., 459 F.Supp. at 645. The court has carefully reviewed the record and based on all the facts and circumstances, the court determines that Waterman did not exercise due diligence in keeping and caring for the cargo when it admittedly exposed BARGE WA 1-0170 to the unsafe portion of pier 15. Furthermore, Waterman has wholly failed to sustain its burden of proving that an error committed during the course of navigation of BARGE WA 1-0170 resulting in the damage to its cargo of bagged wheat flour. The short of the matter: there is no precise knowledge concerning the reason for the barge’s holing; Waterman has expounded several theories in its defense, but simply put Waterman has not carried its COGSA defense. CONCLUSION Royal sustained its burden of making a ;prima" }, { "docid": "3236507", "title": "", "text": "ing area, and recalled many occurrences involving such damage to barges (Tr. 68). For that reason, Waterman’s manual for Lash barges requires that the barges are to be carefully inspected prior to loading on-board Lash vessels and if a barge is found leaking it should be returned to the fleeting area under normal circumstances (pltf s exh. 14, “Barge Inspection”). Chambers stated that had Waterman properly followed inspection procedures prior to loading BARGE WA 1-0170 Waterman should have detected the damaged condition of the barge and returned it back to the fleeting area (Tr. 169). Pryor opined, nonetheless, that once the damage was discovered Waterman’s decision to continue loading the barge on-board S/S STONEWALL JACKSON was correct under the circumstances. Indeed, Pryor hypothesized that the barge may have been in danger of sinking within the time frame required to return it to the pier or fleeting area. More, Waterman alleges that in retrospect, once the cargo was wetted the damage had been done already, so that removing the cargo immediately would not have lessened the damage. The court does not agree. Waterman personnel failed to submit any credible evidence documenting that the barge was observed to be suspiciously low in the water or in danger of sinking at any time prior to loading. Additionally, at the time of discovery Waterman could not have been aware of the extent of water ingress and had a continuing duty to limit the exposure of the cargo to water damage. In sum, the court finds that Waterman’s ■ decision to load the barge conflicted with the requisite procedures for handling a leaking barge, and Waterman failed to establish “[abnormal circumstances” justifying the circumvention of its own written procedure for proper barge operations. The court is clear that Conn's actual practice within the fleeting area consisted mainly of cursory inspections, and despite his checking for obvious visual disturbances Conn did not adequately inspect the barges. Furthermore, specific inconsistencies in Conn’s testimony suggest that Conn’s opinion respecting the cause of the damage to BARGE WA 1-0170 was mere speculation. For example, although Conn testified he could" }, { "docid": "3236499", "title": "", "text": "of lading issued by Waterman, under clause 4 entitled CARRIERS, SERVANTS, CONTRACTORS, ETC., provides to those entities employed by the carrier: to assist in the performance of all work and services undertaken by [the carrier] in connection with the cargo described [in the bill of lading] ... the benefit of all rights, defenses, exceptions and immunities from and limitations of liability of whatsoever nature which the carrier has under this bill of lading ... and under the U.S. Carriage of Goods by Sea Act [COGSA] (deft’s exh. A; emphasis supplied). As mentioned heretofore (fn. 4 supra), Eastern Shore and M & W operated Waterman’s ship and barge operation at Newport News. Waterman’s theory of how the accident occurred appears to be based largely upon the testimony of Captain Gregory Conn (“Conn”) and Pryor. In March and April of 1988, Conn was employed by Eastern Shore as an engineer or deck hand on the tug boat LITTLE MARY and was principally responsible for monitoring the barges at the fleeting area. Conn opined that the tug boat LADY JANICE, owned by Eastern Shore, was navigating BARGE WA 1-0170 from pier 15 when the barge was holed, and that the resulting puncture was due to an error in navigation on the part of the crew of LADY JANICE. Allegedly, the barge’s starboard side aft was pressed against a submerged horizontal section of wood used for reinforcement of the pier called a “whaling,” causing an indent and a puncture just forward of the barge's lifting post (Tr. 73; deft’s post-trial brief at 3). Pryor corroborated Conn’s opinion, predicated upon Pryor’s scrutiny of photographs of pier 15 that he first became aware of during the course of discussions the day before the commencement of trial (Tr. 131). In addition to the fact testimony of Conn and Pryor, Waterman’s theory depends upon a photograph of the damage to BARGE WA 1-0170 (deft’s exh. Z) and photographs of Pier 15 (deft’s exh. L, 0). Finally, Waterman also relies upon the expert testimony of Professor Norman A. Hamlin (“Hamlin”) and the latter’s calculations estimating the time required to" }, { "docid": "3236524", "title": "", "text": "of error in navigation the burden lies with the carrier, Waterman, to provide the requisite affirmative credible evidence documenting that BARGE WA 1-0170 was being navigated at the time of the holing and that the hole was due to an error in navigation. Agrico Chem. Co., 459 F.Supp. at 645. The court has carefully reviewed the record and based on all the facts and circumstances, the court determines that Waterman did not exercise due diligence in keeping and caring for the cargo when it admittedly exposed BARGE WA 1-0170 to the unsafe portion of pier 15. Furthermore, Waterman has wholly failed to sustain its burden of proving that an error committed during the course of navigation of BARGE WA 1-0170 resulting in the damage to its cargo of bagged wheat flour. The short of the matter: there is no precise knowledge concerning the reason for the barge’s holing; Waterman has expounded several theories in its defense, but simply put Waterman has not carried its COGSA defense. CONCLUSION Royal sustained its burden of making a ;prima facie showing of Waterman’s liability for damage to 6,606 bags of wheat flour. Although Waterman was able to establish that BARGE WA 1-1070 was seaworthy at the inception of the voyage, Waterman breached its carrier’s duty to exercise due diligence in keeping and caring for the cargo entrusted in its custody as required under 46 U.S.C.App. § 1303(2). Furthermore, Waterman could not show any error in the navigation or management of BARGE WA 1-0170, and thus compels the conclusion that Waterman failed to affirmatively prove that it is excepted from liability as provided by 46 U.S.C.App. § 1304(2)(a). Accordingly, the court holds that Waterman failed to exonerate itself from liability by bringing the cause of damage under the foregoing exemption clause, and Waterman is responsible for the damages suffered by Royal as subrogee to WFP, owner of the damaged cargo. The parties agree that the value of the 6,606 damaged bags of wheat flour is $111,989.54. Royal further seeks prejudgment interest from April 11, 1988, the date after the discovery of the damage. Absent exceptional" }, { "docid": "3236522", "title": "", "text": "unprotected edge of the whaling should have been plainly visible to the crew at this point in time since the unrebutted evidence establishes that the weather was clear (pltf’s exh. 37) and that the tide was very near its low point (deft’s exh. R). Waterman, however, contends that the holing occurred on April 10, purportedly when the tug boat LADY JANICE was retrieving the barge from pier 15 for delivery to S/S STONEWALL JACKSON, and argues that the tide was near its high point when the incident transpired. But the court finds that Waterman utterly failed to sustain its COGSA burden of proving that BARGE WA 1-0170 was actually being navigated from pier 15 to the anchorage area when the puncture occurred with the resulting flooding, and that the captain or crew committed an error during navigation of the barge. First, the court finds no merit in Waterman’s bald allegation that the tide was near its high point and the whaling was submerged at the time of the incident. This contention directly conflicts with Waterman’s clear lack of certainty respecting when BARGE WA 1-0170 may have been engaged in navigation. Indeed, in various portions of its brief Waterman inconsistently suggests that the barge was towed from the pier at 1230 hours on April 10, (deft’s post-trial brief 9); alternatively, that it was towed sometime between 1230 and 1415 hours on April 10 (Id., 10); or finally, that the barge was towed sometime during the afternoon of that date (Id., 3). Undoubtedly, the barge was towed at some point on April 10. However, Eastern Shore’s tug boat log for LADY JANICE on April 10 (deft’s exh. H), definitively contradicts Waterman’s contention that LADY JANICE was navigating BARGE WA 1-0170 during one of the above hypothesized time periods. Second, Waterman failed to present the necessary evidence respecting which tug boat, if any, may have been navigating the barge at the time of the holing, or for that matter whether or not BARGE WA 1-0170 was actually being navigated at all when it was holed. It bears reiteration that under the COGSA defense" }, { "docid": "3236489", "title": "", "text": "utilized to secure Lash barges and other barges, located inside of a protective jetty just east of the north island of the Bridge Tunnel at Newport News (deft’s exh. H, J). BARGE WA 1-0170 was nested together with three other barges alongside a drydock. The barges, including BARGE WA 1-0170, were then attached to a larger group of barges secured to mooring buoys where the depth was 15 feet (deft’s exh. P, Q, J). BARGE WA 1-0170 remained in the fleeting area from March 9 to April 9, the day before the barge was loaded on-board the mother vessel S/S STONEWALL JACKSON for the ocean portion of the voyage to Berbera (deft’s exh. I; Tr. 18-19). At 1915 hours on April 9, BARGE WA 1-0170 was towed from the fleeting area to pier 15 by the tug boat LADY JANICE for loading on-board S/S STONEWALL JACKSON at the anchorage. BARGE WA 1-0170 remained at pier 15 until towed to the ship anchorage area on April 10, whereupon at 1720 hours BARGE WA 1-0170 was uplifted for loading on-board S/S STONEWALL JACKSON. Damage to BARGE WA 1-0170 During the loading process, water was observed pouring from a slightly L-shaped vertical puncture approximately 4\" long and xh\" wide, located 3\" forward of the lifting post aft on the starboard side at the 7'10%\" draft mark (deft’s exh. T, Z, EE; Tr. 124, 126-128). Waterman’s Port Engineer and manager of barge maintenance and repair, Charles Pryor (“Pryor”), sent a telex to S/S STONEWALL JACKSON instructing the crew to drill a hole and determine whether water had entered the barge. Thereupon, a crew member drilled a lk\" hole on the starboard side of the shell plating, 30\" above the bilge knuckle amidship releasing the water that, in fact, had infiltrated the barge. The drain hole was plugged and temporary repairs to the puncture were effected by means of a hand patch, that prevented water from draining back into the cargo compartment when the damaged barge was discharged from the vessel for repair in New York. The pontoon covers of the barge were opened on" }, { "docid": "3236495", "title": "", "text": "that the best evidence of the seaworthiness of the barge in terms of the area in and around the puncture is the very steel section which Waterman discarded after repair of the barge, and thus Royal could not assess the condition of the skin of the barge at the exact point of the puncture. But the unrebutted evidence demonstrates that the area around the puncture had been found to contain uniform thickness in July 1987. Hence, Royal’s inability to inspect the particular steel section discarded by Waterman, although somewhat handicapping, did not prohibit Royal from conducting its own inspection of the surrounding steel plating area to rebut Waterman’s credible evidence in favor of seaworthiness. Royal chose not to undertake such an inspection. Consequently, the court finds that Waterman exercised due diligence to make BARGE WA 1-0170 seaworthy at the inception of the voyage. Royal’s Prima Facie case Royal’s central argument is that Waterman failed to exercise due diligence to properly keep and care for the cargo aboard BARGE WA 1-0170 resulting in the water damage to the cargo. A cargo owner makes a prima facie case of liability against an ocean carrier for loss or damage to goods by proving that the carrier re ceived the cargo in apparent good order and condition and that the cargo was either damaged upon delivery or not delivered. Insurance Co. of North America v. S/S “Globe Nova”, 820 F.2d 546, 548, 1987 AMC 2324, 2329 (2d Cir.1987), cert. denied, 484 U.S. 965, 108 S.Ct. 454, 98 L.Ed.2d 394, 1988 AMC 2399 (1987); M. Golodetz Export Corp. v. S/S LAKE ANJA, 751 F.2d 1103, 1109, 1985 AMC 891, 899 (2d Cir.1985), cert. denied, 471 U.S. 1117, 105 S.Ct. 2361, 86 L.Ed.2d 261, 1985 AMC 2398 (1985). The cargo owner is not required to prove that the carrier was at fault; nor is the cargo owner required to explain how the loss or damage occurred. M. Golodetz Export Corp., 751 F.2d at 1109, 1985 AMC at 899; Nissho-Iwai Co., Ltd. v. M/V STOLT LION, 617 F.2d 907, 912, 1980 AMC 867, 872 (2d Cir.1980). Clearly," }, { "docid": "3236501", "title": "", "text": "flood the barge following penetration of the shell plating and the quantity of water which entered the barge. Based on the totality of the evidence it submitted, Waterman insists that the damage could only have been sustained at pier 15 “while the barge was moving forward and while a pressure was being applied sideways” (deft’s post-trial brief 9). Waterman concludes that “only a tugboat moving the barge forward and turning the head of the barge away from the pier at the same time could exert the forces to press the starboard aft side of the barge against the whaling” (Id.). In support of its allegation regarding navigational error on the part of LADY JANICE, Waterman refers the court to the general legal proposition cited in Wirth, Ltd. v. S.S. ACADIA FOREST, 537 F.2d 1272, 1279 (5th Cir.1976), reh’g. denied, 541 F.2d 281 (5th Cir.1976). In Wirth, the court states that “a navigational error committed by the captain or crew of the tug responsible for the movement of [a] LASH barge, which error results in damage to the cargo of the LASH barge, exempts the carrier from liability to cargo.” Royal agrees with the general legal proposition cited by Waterman but maintains that, here, carrier liability exists for the reason that Waterman failed to sustain its burden of proving that BARGE WA 1-0170 was being navigated at the time it was holed, and that the hole was caused by an error in the navigation of the barge. Agrico Chem. Co. v. S.S. ATLANTIC FOREST, 459 F.Supp. 638, 645 (E.D.La 1978), aff'd per curiam, 620 F.2d 487 (5th Cir.1980). Royal suggests that the barge could have been holed as the result of any one of several different types of activity other than in the course of navigating the laden barge. (1) First, Royal hypothesizes that the barge could have been holed and the cargo damaged for the reason that Waterman failed to exercise due diligence in the keeping and caring of the cargo during the course of on-going activity at the fleeting area. Specifically, Royal argues that Waterman allowed the barge to" }, { "docid": "3236503", "title": "", "text": "make contact with the bottom (corner) of a drydock which was moored adjacent to the barge. A diagram of the fleeting area barge configuration prepared by Conn illustrates that the flotilla including BARGE WA 1-0170 was moored alongside the drydock and that a space was maintained separating the barge and the drydock (deft’s exh. P; Tr. 46). Conn explained that the portion of the drydock below the waterline, approx imately 1' to 1'6\" in a light (unloaded) condition, did not contain any objects protruding from it; and Conn dismissed any possibility that the space existed to avoid any contact between the side of the barge and the bottom of the drydock. Nevertheless, Pryor testified that the location of the puncture was at approximately the same depth as the bottom of the drydock (Tr. 132). Also, Conn’s diagram introduces the likelihood that the barge and drydock were attached to separate flotillas independently secured by different mooring buoys (deft’s exh. P, Q), thereby permitting contact between the barge and the bottom (corner) of the drydock. Waterman, however, contends that Conn’s daily inspections eliminated any possibility that BARGE WA 1-0170 could have been holed in the fleeting area. Continuing, Waterman reasons that BARGE WA 1-0170 would show the effects of the water that flooded her hold occasioned by the 4\" puncture below the waterline, allegedly because the additional water would increase the barge’s draft by 9\" covering the 9' draft mark representing the deepest marking on the shell plating and would thereby alert Conn. But Conn testified on cross-examination that he did not depend upon the draft markings on the barges when conducting his inspections, instead relying on his experienced eye to determine the draft of a particular barge (Tr. 71). Conn admitted — critically—that he would have difficulty visually noticing whether a barge was drafting a few inches more or less than the maximum draft of 8'6%\". Interestingly, however, Conn was certain that he could tell “instantly” whether a barge was drafting over 9' (Tr. 72). But he also admitted — critically—that it was very possible for water to enter a barge" }, { "docid": "3236525", "title": "", "text": "facie showing of Waterman’s liability for damage to 6,606 bags of wheat flour. Although Waterman was able to establish that BARGE WA 1-1070 was seaworthy at the inception of the voyage, Waterman breached its carrier’s duty to exercise due diligence in keeping and caring for the cargo entrusted in its custody as required under 46 U.S.C.App. § 1303(2). Furthermore, Waterman could not show any error in the navigation or management of BARGE WA 1-0170, and thus compels the conclusion that Waterman failed to affirmatively prove that it is excepted from liability as provided by 46 U.S.C.App. § 1304(2)(a). Accordingly, the court holds that Waterman failed to exonerate itself from liability by bringing the cause of damage under the foregoing exemption clause, and Waterman is responsible for the damages suffered by Royal as subrogee to WFP, owner of the damaged cargo. The parties agree that the value of the 6,606 damaged bags of wheat flour is $111,989.54. Royal further seeks prejudgment interest from April 11, 1988, the date after the discovery of the damage. Absent exceptional circumstances, prejudgment interest is customarily granted in admiralty cases. Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 310-11 (2d Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 860 (1988). The district court has broad discretion in setting the rate of interest and the date of its commencement. Independent Bulk Transp., Inc. v. Vessel “MORANIA ABACO”, 676 F.2d 23, 26 (2d Cir.1982); Standard Marine Towing Servs., Inc. v. M.T. Dua Mar, 708 F.Supp. 562, 569 (S.D.N.Y.1989). Consequently, the court finds that prejudgment and post-judgment interest shall accrue at the rate set conforming to the formula prescribed in 28 U.S.C. § 1961(a) (1988). Pre-judgment interest shall commence to run on the sum of $111,989.54 from April 11, 1988, the date after the damage to BARGE WA 1-0170 was discovered. The clerk shall enter judgment in favor of plaintiff for the sum of $111,989.54, together with interest as discussed supra, and with costs. . WFP is an instrumentality of the Food and Agricultural Organization, an agency of the United Nations which, inter alia," }, { "docid": "3236521", "title": "", "text": "for placing a barge alongside the pier (Tr. 155). Furthermore, Conn testified that during periods where the range of tide is at its high point the whaling becomes submerged and thus is nearly invisible (Tr. 34). At Newport News on April 9, high tide occurred at 0214 hours and 1442 hours; on April 10, high tide occurred at 0324 hours and 1556 hours (deft’s exh. R ). The record abundantly establishes that this portion of the pier was an unsafe spot to moor BARGE WA 1-0170. The central issue, then, is whether Waterman, which allegedly towed BARGE WA 1-0170 and damaged its cargo at this demonstrably unsafe section of the pier, committed an error in the navigation of the barge thus excusing Waterman’s carrier liability under COGSA. For purposes of COGSA liability, an error in navigation of the barge was unlikely when BARGE WA 1-0170 was towed by the LADY JANICE from the fleeting area to pier 15 at 1915 hours on April 9, 1988 arriving at 1950 hours (deft’s exh. H). Simply put, the unprotected edge of the whaling should have been plainly visible to the crew at this point in time since the unrebutted evidence establishes that the weather was clear (pltf’s exh. 37) and that the tide was very near its low point (deft’s exh. R). Waterman, however, contends that the holing occurred on April 10, purportedly when the tug boat LADY JANICE was retrieving the barge from pier 15 for delivery to S/S STONEWALL JACKSON, and argues that the tide was near its high point when the incident transpired. But the court finds that Waterman utterly failed to sustain its COGSA burden of proving that BARGE WA 1-0170 was actually being navigated from pier 15 to the anchorage area when the puncture occurred with the resulting flooding, and that the captain or crew committed an error during navigation of the barge. First, the court finds no merit in Waterman’s bald allegation that the tide was near its high point and the whaling was submerged at the time of the incident. This contention directly conflicts with Waterman’s" }, { "docid": "3236493", "title": "", "text": "care for, and discharge the goods carried,” then laying out in § 4(2) sixteen specific, (a)-(p), and one catch-all (q), causes of loss or damage to cargo that serve to limit the scope of the duty as generally defined in § 3(2). Id. at 261-62 (emphasis supplied). These four interrelated sections effectively permit the cargo owner to establish ocean carrier liability on two separate “due diligence” theories, and the cargo carrier to limit liability exposure for its failure to exercise due diligence respecting the cargo. For the reasons which follow the court finds that Waterman, though able to establish the seaworthiness of BARGE WA 1-0170 at the commencement of the voyage in Helena, has failed to exercise due diligence in keeping and caring for the cargo, which failure caused the cargo damage. Further, Waterman falls short of exonerating its negligent conduct under the 46 U.S. C.App. § 1304(2)(a) defense of error in navigation or management of the barge. Seaworthiness Initially, Royal raises the issue that Waterman failed to exercise due diligence to provide a seaworthy barge for the intended voyage. That issue can be quickly resolved, since the uncontradicted evidence establishes that Waterman fulfilled its duty to the cargo owner under 46 U.S.C.App. § 1303(l)(a) and § 1304(1) in exercising due diligence to make the barge seaworthy at the commencement of the voyage. On January 15, 1987 the barge was audiogaged at S/S Barge Maintenance, Inc. in Savannah, Georgia which established the steel thicknesses of the barge at certain critical points. Indeed, the steel thicknesses at the location where the puncture occurred was within several thousandths of an inch of .250 or VU, the thickness of the plating as originally installed. More, in July 1987 the American Bureau of Shipping (“ABS”) conducted a special intermediate ship’s survey and “recommend[ed] that [BARGE WA 1-0170] be retained as Classed with [ABS]” (Tr. 102, 104, 106-9; deft’s exh. B, D). Finally, on February 5 the barge was inspected by Waterman personnel in Helena before loading and was found clean, dry and fit for the carriage of cargo, (deft’s exh. E). Royal argues, however," }, { "docid": "3236486", "title": "", "text": "damaged bags against risk of loss or damage during their transportation for The World Food Programme (“WFP”), owner of the shipment which is the subject matter of this action. On March 2, 1989 Royal paid to WFP the sum of $108,313.00 constituting the insured value of the damaged cargo. As an incident to the payment, WFP subrogated to Royal all of its rights against carriers responsible for damage to the cargo. Seeking damages as subrogee, Royal alleges that Waterman, a common carrier of goods by sea and owner of the Lash vessels S/S ROBERT E. LEE and S/S STONEWALL JACKSON, failed to exercise due diligence in making BARGE WA 1-0170 (owned by Amsouth) seaworthy for the intended voyage, and failed to exercise due care in keeping and caring for the cargo during its period of transportation aboard the barge. See, 46 U.S.C.App. §§ 1303(1), 1303(2) (1936). Waterman seeks dismissal of the complaint responding that BARGE WA 1-0170 was seaworthy at the commencement of the voyage; Also, conceding that negligence by one of tugboats under Waterman’s direction caused damage to BARGE WA 1-0170 and its cargo, Waterman claims excusal from liability pursuant to the COGSA defense of error in the navigation and management of the barge. See, 46 U.S.C.App. §§ 1304(1), 1304(2)(a) (1936). Maritime jurisdiction exists under 28 U.S.C. § 1333 (1988). In accordance with Fed.R.Civ.P. 52(a), the court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT AND CONCLUSIONS OF LAW Background Shipment from Helena .to Newport News On February 2,1988 Waterman delivered BARGE WA 1-0170 to the shipper in Helena for loading, and on February 5, 1988 Waterman conducted an inspection of the barge indicating it to' be clean, dry and without leaks (deft’s exh. E). Further on February 5, WFP delivered to Waterman a shipment of 27,036 bags of wheat flour, then in apparent good order and condition, for carriage by water from Helena to Berb-era and thence delivery to WFP representatives. Of the 27,036 bag shipment, BARGE WA 1-0170 was loaded with 7,482 bags weighing 369.09 long tons and was drawing 8'6%\", the" }, { "docid": "3236502", "title": "", "text": "to the cargo of the LASH barge, exempts the carrier from liability to cargo.” Royal agrees with the general legal proposition cited by Waterman but maintains that, here, carrier liability exists for the reason that Waterman failed to sustain its burden of proving that BARGE WA 1-0170 was being navigated at the time it was holed, and that the hole was caused by an error in the navigation of the barge. Agrico Chem. Co. v. S.S. ATLANTIC FOREST, 459 F.Supp. 638, 645 (E.D.La 1978), aff'd per curiam, 620 F.2d 487 (5th Cir.1980). Royal suggests that the barge could have been holed as the result of any one of several different types of activity other than in the course of navigating the laden barge. (1) First, Royal hypothesizes that the barge could have been holed and the cargo damaged for the reason that Waterman failed to exercise due diligence in the keeping and caring of the cargo during the course of on-going activity at the fleeting area. Specifically, Royal argues that Waterman allowed the barge to make contact with the bottom (corner) of a drydock which was moored adjacent to the barge. A diagram of the fleeting area barge configuration prepared by Conn illustrates that the flotilla including BARGE WA 1-0170 was moored alongside the drydock and that a space was maintained separating the barge and the drydock (deft’s exh. P; Tr. 46). Conn explained that the portion of the drydock below the waterline, approx imately 1' to 1'6\" in a light (unloaded) condition, did not contain any objects protruding from it; and Conn dismissed any possibility that the space existed to avoid any contact between the side of the barge and the bottom of the drydock. Nevertheless, Pryor testified that the location of the puncture was at approximately the same depth as the bottom of the drydock (Tr. 132). Also, Conn’s diagram introduces the likelihood that the barge and drydock were attached to separate flotillas independently secured by different mooring buoys (deft’s exh. P, Q), thereby permitting contact between the barge and the bottom (corner) of the drydock. Waterman, however," } ]

[ { "docid": "23126043", "title": "", "text": "cure is “annexed to the employment,” Cortes v. Baltimore Insular Line, 287 U. S. 367, 371; see The Osceola, 189 U. S. 158; is “an incident of the marine employer-employee relationship,” Aguilar v. Standard Oil Co., 318 U. S. 724, 730; 1 Benedict, Admiralty (6th ed., 1940) 61, 253; and because only the owner or owner pro hac vice of a vessel is liable for wages, which also stem from the contract of employment. Shilman v. United States, 164 F. 2d 649, 652; The John E. Berwind, 56 F. 2d 13; Everett v. United States, 284 F. 203; Cox v. Lykes Brothers, 237 N. Y. 376, 383, 143 N. E. 226, 228-229. Thus liability for wages and maintenance and cure depends upon the same relationship that is required to support an action for negligent injury. That relationship does not exist between petitioner and respondent. The delivery certificate, relied upon by petitioner as showing that the Gadsden was in the possession and control of Agwilines, recites in pertinent part that the ship “was on the 31st day of December, 1942 . . . delivered . by War Shipping Administration to Agwilines, Inc. Under Terms and Conditions of ‘Service Agreement, Form GAA’ ...” It is quite obvious, .we think, that this certificate refers only to a “delivery” for the purposes contemplated by the General Agency Agreement and adds nothing of significance to that agreement, which we have already held, McAllister, supra, to be insufficient to establish liability on the part of the general agent. Nos. 860 and 430 affirmed. Mr. Justice Black,. Mr. Justice Douglas, Mr. Justice Murphy and Mr. Justice Rutledge dissent. 41 Stat. 1007, 46 U. S. C. § 688. He also filed claim on account of his injuries with the War Shipping Administration and sued the United States pursuant to the Suits in Admiralty Act and the War Shipping Administration (Clarification) Act, 57 Stat. 45, 50 U. S. C. App. § 1291. This.suit was later dismissed without prejudice. See Hust v. Moore-McCormack Lines, supra, at 727. Note that wages and maintenance and cure are treated along with claims for" } ]

[ { "docid": "7855791", "title": "", "text": "MATHES, District Judge. Libelant, formerly “an employee of the United States of America by and through the Army Transport Service”, filed this libel in personam against the United States for allegedly unpaid wages and bonus. The libel avers that libelant served as able-bodied seaman aboard various army transports and tugs from April 6, 1944 until March, 30, 1945 pursuant to a written contract of employment with the Army Transport Service providing for certain base pay plus war bonuses; that certain overtime, together with area war bonus of $5 per day for all service in the Pacific Ocean west of the 180th Meridian, accrued to libelant under the contract and remains unpaid. Consent to invoke the admiralty jurisdiction of this court to enforce his claim against the Government is found, libelant asserts, in the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq. The Government has filed exceptions urging that the libel fails to allege facts sufficient to show the jurisdiction of this court over the person of respondent in this cause. [Cf. United States Shipping Board Emergency Fleet Corporation v. Rosenberg Bros., 1927, 276 U.S. 202, 214, 48 S.Ct. 256, 72 L.Ed. 531.] Attached to these exceptions are exceptive allegations to the effect that the sovereign has never consented to be sued on a claim arising under the circumstances said to be involved here. The United States of America, as sovereign, consents to be sued when the nature of the claim and the circumstances of suit are such as fall within the provisions of the Tucker Act of March 3, 1887, 28 U.S.C.A. § 41(20); or the Suits in Admiralty Act of March 9, 1920, 46 U.S.C.A. § 741 et seq.; or the Public Vessels Act of March 3, 1925, 46 U.S.C.A. § 781 et seq.; or the War Shipping Administration (Clarification) Act of March 24, 1943, frequently referrred to as Public Law 17, 50 U.S.C.A. Appendix, § 1291; or the Federal Tort Claims Act of August 2, 1946, 28 U.S.C.A. § 921 et seq. — and not otherwise. [Reid v. United States, 1909, 211 U.S. 529, 538, 29" }, { "docid": "15852275", "title": "", "text": "HARTSHORNE, District Judge. Plaintiff, as administratrix ad pros of her deceased husband, Hugh W. Joyce, has filed her libel December 7, 1951 against defendant for compensation for his injuries and death under 46 U.S.C.A. §§ 742, 745. Defendant seeks to have the libel dismissed by reason of the following exceptions (1) that it is time barred under 46 U.S.C.A. § 745, (2) that it is not verified under Supreme Court Admiralty Rule 22, (3) that it does not properly allege deceased’s employment under the Clarification Act, 50 U.S. C.A.Appendix, § 1291. The facts, as alleged in the libel, are that plaintiff’s husband died December 17, 1947, as a result of being subjected to carbon tetrachloride poisoning while aboard the SS Marine Perch, as an assistant marine engineer, on December 8, 1947, this ship being \"owned, managed and controlled” by the United States through the War Shipping Administration, for which the American Export Lines, Inc. were general agents. Previously, on April 11, 1949, Mrs. Joyce filed a complaint at law, demanding a trial by jury, against the American Export Lines, Inc. and the United States, in the United States District Court for the Southern District of New York. This was before the decision by the United States Supreme Court of Cosmopolitan Shipping Company v. McAllister, 1948, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, which decision, while approving of its previous decision in Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, overruled its previous decision in Hust v. Moore-McCormack Lines, 1946, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534. In the light of the McAllister decision, the American Export Lines, defendant in this earlier action at law, was successful in having such action dismissed as to it, on the ground that it was not a proper defendant, since the decedent was not employed by it, but by the United States, which owned and operated the SS Marine Perch. Thereafter Mrs. Joyce, defeated in her attempt to obtain a jury trial against American Export Lines, filed the instant libel against the United States, for the" }, { "docid": "8454445", "title": "", "text": "KIRKPATRICK, District Judge. This suit in admiralty is for damages resulting from an accident which caused the death of the libellant’s son while serving as a seaman on a vessel owned by the United States. The basis of the suit is negligence and the libel avers that it “is brought under the Suits in Admiralty Act [46 U.S.C.A. § 741 et seq.] * * * and pursuant to applicable provisions of Section 33 of the Merchant Marine Act of 1920” (Jones Act), 46 U.S.C.A. § 688. The libel was filed more than two years, but less than three years, after the accident and death. The question raised by this motion to dismiss is whether suits brought against the United States, since the enactment of the “Clarification Act” of 1943, 57 Stat. 45, by seamen to enforce the rights engrafted upon the maritime law by the Jones Act, are subject to the two year jurisdictional limitation of the Suits in Admiralty Act. The Suits in Admiralty Act (Sec. 5) provides that “all * * * suits hereunder shall be brought within two years after the cause of action arises.” The Jones Act was enacted three months later and the limitation for actions brought under its provisions has been, since 1939, three years. If this were a suit against a private owner the three year limitation would unquestionably apply, and the libel would have been filed in time. On March 24, 1943, Congress enacted Public Law 17 of the 78th Congress, 57 Stat. 45, sometimes referred to as the Clarification Act. The main purpose of Section 1 was to remove various technical difficulties which confronted seamen on United States and foreign flag vessels, in cases of injury, illness, death, etc., arising from their government-employee status and also from the frequent uncertainty as to whether the ship was a merchant or public vessel. The Act extended to such seamen all the rights of seamen, citizens of the United States, employed on privately owned American vessels with respect to death, injuries, maintenance and cure, etc. It further prescribed a claim for administrative relief as" }, { "docid": "135162", "title": "", "text": "denied as to the claim after that .date. Settle order on notice. . . His Majesty’s Government v. Flying Arrow, D.C., 97 F.Supp. 182. . 48 U.S.C.A. § 745. . Osbourne v. United States, 2 Cir., 164 F.2d 767; Paschal v. North Atlantic & Gulf S. S. Co., D.C., 95 F.Supp. 293. . Pacific Steamship Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 73 L.Ed. 220; Cortes v. Baltimore Insular Lines, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368. . La Fontaine v. The G. M. McAllister, D. C., 101 F.Supp. 826. . Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 791-792, 69 S.Ct. 1317, 93 L.Ed. 1692; Jensen v. United States, 3 Cir., 184 F.2d 72. . 46 U.S.C.A. § 688. . Nolan v. General Seafoods Corporation, 1 Cir., 112 F.2d 515. . 46 U.S.C.A. § 745. . Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993. . Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850. . The Boulter No. 2, 2 Cir., 241 F. 831, 835; La Fontaine v. The G. M. McAllister, supra, footnote 5 hereof. . See Restatement of Torts, Sections 457 — 459; Sauter v. New York Central and Hudson R. R. Co., 66 N.Y. 50; Jensen v. United States, supra, footnote 6 hereof. . Mayo v. United States of America War Shipping Administration, D.C., 82 F. Supp. 61; Christo v. United States, D.C., 88 F.Supp. 960; Ran v. Atlantic Refining Co., D.C., 87 F.Supp. 853; McMahon v. United States, D.C., 91 F. Supp. 593, affirmed 3 Cir., 186 F.2d 227, affirmed 342 U.S. 25, 72 S.Ct. 17. Cf. Kruhmin v. United States, 3 Cir., 177 F.2d 906. . MacInnes v. United States, 1 Cir., 189 F.2d 733; McMahon v. United States, supra, footnote 14 hereof; Kruhmin v. United States, D.C., 81 F.Supp. 689. Cf. Parks v. United States, D.C., 90 F.Supp. 725." }, { "docid": "10567762", "title": "", "text": "by it in accordance with the rules and regulations herein adverted to could suit be brought. In the instant case, although the libellant gave notice of his claim to the proper authorities, the War Shipping Administration, it did not make a final determination of the claim because as filed it did not contain information reasonably sufficient for them to so do. The required information was continually requested of the libellant and as long as it was withheld, the War Shipping Administration could not allow or administratively disallow the claim. It was the duty of the libellant after having given notice of .his claim and a request made for additional information to promptly give to the War Shipping Administration the additional information, and not having done this, and the claim not having been administratively disallowed, he is precluded from bringing this suit. Fox v. Alcoa S. S. Co., 5 Cir., 143 F.2d 667, certiorari denied 323 U.S. 788, 65 S.Ct. 313, 89 L.Ed. 628. See Militano v. United States, 2 Cir., 156 F.2d 599, 601. The libel is dismissed for want of jurisdiction. Act of March 9, 1920, c. 95, Sections 1-12, 41 Stat. 525-528, 46 U.S.C. A. §§ 741-752. Act of June 29. 1940, e. 447, Title II, Sections 221-229, 54 Stat 689, as amended, 40 U.S.C.A. §§ 1128-1128h. Act of March 24, 1943, c. 26, 57 Stat. 45-51, 50 U.S.O.A.Appendix, §§ 1291-1295. Act of June 5, 1920, c. 250, section 33, 41 Stat. 1007, 46 U.S.C.A. § 688. See Grant v. United States War Skipping Administration, D.C.E.D.Pa., 65 F.Supp. 507." }, { "docid": "14039116", "title": "", "text": "the civil side of this court against J. H. Winchester & Co., Inc., as genéral agent of the United States. This suit, arising out of the same incident'set forth in the within libel, was tried before a court and jury on January 12, 13 and 14, 1949 and resulted in a jury verdict in favor of defendant on the negligence count and in favor of libelant- on a maintenance and cure count, upon which verdict appropriate jdugment was entered. On February 10, 1949, libel-ant filed a notice of appeal to the Court of Appeals from this judgment, and defendant cross-appealed. Thereafter, plaintiff and defendant agreed to dismiss their respective appeals upon payment by defendant of the amount of the verdict for maintenance and cure. A stipulation dismissing the appeals was entered into and duly filed, and an order approving it was signed by this court on September 28, 1949. Putting to one side the possible effect of special legislation, it is clear that the exceptions here made would have to be sustained. The effect of the order was to reinstate as final the judgment entered in the trial court, and the Court of Appeals for this Circuit has held that a judgment for the general agent is res judicata in a subsequent action against the United States. Adriaanse v. United States, 2 Cir., 184 F.2d 968. Libelant, however, asserts that he is entitled to institute this action by virtue of Chapter 1136, Public Law 877, 46 U.S.C.A. § 745. The Act, passed as a result of McAllister v. Cosmopolitan Shipping Co., 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, provides so far as here relevant: “That the limitations contained in this section for the commencement of suits shall not bar any suit against the United States brought hereunder within one year after the enactment of this amendatory Act, if such suit is based upon a cause of action whereon a prior suit in admiralty or an action at law was timely commenced and was or may hereafter be dismissed solely because improperly brought against any person, partnership, association, or" }, { "docid": "2829921", "title": "", "text": "Act, 46 U.S.C.A. § 741 et seq., was enacted Ma'rch 9, 1920. Section 1 of the Act provides that no vessel owned by the United. States or in the possession of the United States or operated by or for the United States “shall hereafter, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions”. Section 2 provides that “in cases where if such vessel were privately owned or operated, * * a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States * * * provided that such vessel is employed as a merchant vessel * *.” Section 5, after making special provision for certain causes of action arising prior to the effective date of the Act, prescribes that “all other suits hereunder shall be brought within two years after the cause of action arises.” On March 24, 1943, the 78th Congress enacted Public Law 17, 57 Stat. 45, 50 U.S. C.A.Appendix, § 1291 et seq., popularly referred to as the “Clarification Act” (somewhat of a misnomer, perhaps. Cf. Cosmopolitan Shipping Co. v. McAllister, 1949, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692). Section 1 of the Clarification Act provides that, “(a) officers and members of crews (hereinafter referred to as ‘seamen’) employed on United States or foreign flag vessels as employees of the United States through the War Shipping Administration shall, with respect to * * * (2) death, injuries, illness, maintenance and cure, * * * or claims arising therefrom * * have all of the rights, benefits, exemptions, privileges, and liabilities, under law applicable to citizens of the United States employed as seamen on privately owned and operated American vessels. * * * Any claim referred to in clause (2) * * * hereof shall, if administratively disallowed in whole or in part, be enforced pursuant to the provisions of the Suits in Admiralty Act, notwithstanding the vessel on" }, { "docid": "2829922", "title": "", "text": "1943, the 78th Congress enacted Public Law 17, 57 Stat. 45, 50 U.S. C.A.Appendix, § 1291 et seq., popularly referred to as the “Clarification Act” (somewhat of a misnomer, perhaps. Cf. Cosmopolitan Shipping Co. v. McAllister, 1949, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692). Section 1 of the Clarification Act provides that, “(a) officers and members of crews (hereinafter referred to as ‘seamen’) employed on United States or foreign flag vessels as employees of the United States through the War Shipping Administration shall, with respect to * * * (2) death, injuries, illness, maintenance and cure, * * * or claims arising therefrom * * have all of the rights, benefits, exemptions, privileges, and liabilities, under law applicable to citizens of the United States employed as seamen on privately owned and operated American vessels. * * * Any claim referred to in clause (2) * * * hereof shall, if administratively disallowed in whole or in part, be enforced pursuant to the provisions of the Suits in Admiralty Act, notwithstanding the vessel on which the seaman is employed is not a merchant vessel within the meaning of such Act. * * * When used in this subsection the term ‘administratively disallowed’ means a denial of a written claim in accordance with rules or regulations prescribed by the Administrator, War Shipping Administration.” Pursuant to the aforesaid statutory authority, the War Shipping Administration issued its General Order 32 on April 22, 1943, 8 F.R. 5414. Section 304.23 of this Order provides that no seaman having a claim of the sort now in question shall commence a court action for its enforcement unless such claim has been filed by him as provided elsewhere in the Order and has been “administratively disallowed” by the person or agency with whom it was so filed. Section 304.26 provides that if the person or agency with whom the claim is duly filed “fails to notify the claimant in writing of a determination upon such claim, within sixty days following the date of filing thereof, the claim shall be presumed to have been administratively disallowed, and" }, { "docid": "6118529", "title": "", "text": "sue the United States in any State or Federal District Court, or that he could insist on a jury trial. In other words, we think Congress meant what it said when, in the Clarification Act, it said that the rights to be pursued by an American seaman against the United States were to be pursued as prescribed by the Suits in Admiralty Act. We think there is no more reason to disregard the time provisions in the Suits in Admiralty Act than any others. Affirmed. 41 Stat. 1007, Act June 5, 1920, 46 U.S.C.A. § 688. 53 Stat. 1404, Aug. 11, 1939, 45 U.S.C.A. § 56. 41 Stat. 525, March 9, 1920, 46 U.S.C.A. § 741. 57 Stat. 45, March 4, 1943, 50 U.S.C.A.Appendix, § 1291. But see argument to the contrary on this assumption cited hy the Court in Kakara v. United States, 9 Cir., 1946, 157 F.2d 578: “Appellant [Kakara] contends that as to the Jones Act’s rights against private owners and vessels, this subsequent amendment of the Employers’ Liability Act enlarged the Jones Act’s limitation to three years. * * * [Citing cases] Appellee contends that the Jones Act embodied the provisions of the Employers’ Liability Act only as to the latter’s provisions as they were when so embodied and cites [cases] * * *. Our view of the specific two year provision of § 5 of the Suits in Admiralty Act makes it unnecessary to determine this contention of appellant.” 41 Stat. 526, March 9, 1920, 46 U.S.C.A. § 745. See dictum in Brady v. Roosevelt S. S. Co., 1943, 317 U.S. 575, 581, 63 S.Ct. 425, 428, 87 L.Ed. 471: “ * * * Furthermore, if all suits to enforce maritime causes of action must be brought in such cases under § 2 of the Acts [Suits in Admiralty Act] the short statute of limitations of two years contained in § 5 is applicable. * * * ” Also see dictum in Piascik v. United States, D.C.S.D.N.Y., 1944, 65 F.Supp. 430, 431: “ * * * Nor can the contention that the Jones Act, 46" }, { "docid": "17023629", "title": "", "text": "MATHES, District Judge. This libel in personam is brought pursuant to the so-called Clarification Act of 1943, 50 U.S.C.A.Appendix, § 1291, and the Suits in Admiralty Act, 46 U.S.C.A. §§. 741-752. Libelant alleges that he was a seaman on the S. S. “Fort George” and an employee of the United States through the War Shipping Administration; that in-1944 he signed regular shipping articles in the Canal Zone; that on the ensuing voyage he was injured as a proximate consequence of the negligence of his employer; that his resulting claim has been administratively disallowed. For such injuries and for wages, cure and maintenance, and for lack of proper medical and surgical services and medicine, libelant seeks a decree. The Clarification Act, approved March 24, 1943, 57 Stat. 45, 50 U.S.C.A. Appendix, § 1291, provides in part: “Officers and members of crews (hereinafter referred to as ‘seamen’) employed on United States or foreign flag vessels as employees of the United States through the War Shipping Administration shall, with respect to * * * death, injuries, illness, maintenance and cure, loss of effects, detention, or repatriation, or claims arising therefrom * * * have all of the rights, benefits, exemptions, privileges, and liabilities, under law applicable to citizens of the United States employed as seamen on privately owned and operated American vessels. * * * Any claim * * * shall, if ad ministratively disallowed * * * be enforced pursuant to the provisions of the Suits in Admiralty Act * * *.” The Suits in Admiralty Act provides that suits thereunder against the United States may be brought “in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found.” 46 U.S.C.A. § 742. The libel at bar contains no averment as to libelant’s residence or his “principal place of business in the United States,” nor as to the whereabouts of the S. S. “Fort George.” Respondent has excepted" }, { "docid": "11391706", "title": "", "text": "War Shipping Administration.” It thus gave effect to a congressional purpose to treat seamen employed through the War Shipping Administration as “merchant seamen” and not as “public vessel seamen” Cosmopolitan Shipping Company v. McAllister, 337 U.S. 783, 792, 69 S.Ct. 1317, 93 L.Ed. 1692; Johansen v. United States, 343 U.S. 427, 434, 72 S.Ct. 849, 96 L.Ed. 1051. . See Everett v. United States, 9 Cir. 1922, 284 F. 203; The John Berwind, 2 Cir. 1932, 56 F.2d 13; and Shilman v. United States, 2 Cir. 1947, 164 F.2d 649, all cited with approval, Fink v. Shephard Steamship Company, supra, 337 U.S. at page 815, 69 S.Ct. at page 1333. . It should be noted that the courts have historically referred to the rights to “wages and maintenance and cure” as a package benefit for seamen. It has never been contemplated that the benefits are severable, wages due and owing from one person and maintenance and cure from another. . Fink v. Shephard Steamship Company, supra, 337 U.S. at page 815, 69 S.Ct. at page 1333. . “3. That all the members of the crew, except perhaps the master, are, as between themselves, fellow servants, and hence seamen cannot recover for injuries sustained through the negligence of another member of the crew beyond the expense of their maintenance and cure. “4. That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident.” The Osceola, supra, 189 U.S. at page 175, 23 S.Ct. at page 487. . 46 U.S.O. § 688. . Cosmopolitan Shipping Company v. McAllister, supra, 337 U.S. at page 790, 69 S.Ct. at page 1321. . 46 U.S.C. § 51 et seq. . 45 U.S.C. § 51. “Every common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of" }, { "docid": "7855792", "title": "", "text": "Shipping Board Emergency Fleet Corporation v. Rosenberg Bros., 1927, 276 U.S. 202, 214, 48 S.Ct. 256, 72 L.Ed. 531.] Attached to these exceptions are exceptive allegations to the effect that the sovereign has never consented to be sued on a claim arising under the circumstances said to be involved here. The United States of America, as sovereign, consents to be sued when the nature of the claim and the circumstances of suit are such as fall within the provisions of the Tucker Act of March 3, 1887, 28 U.S.C.A. § 41(20); or the Suits in Admiralty Act of March 9, 1920, 46 U.S.C.A. § 741 et seq.; or the Public Vessels Act of March 3, 1925, 46 U.S.C.A. § 781 et seq.; or the War Shipping Administration (Clarification) Act of March 24, 1943, frequently referrred to as Public Law 17, 50 U.S.C.A. Appendix, § 1291; or the Federal Tort Claims Act of August 2, 1946, 28 U.S.C.A. § 921 et seq. — and not otherwise. [Reid v. United States, 1909, 211 U.S. 529, 538, 29 S.Ct. 171, 53 L. Ed. 313.] Libelant’s claim is clearly not within the scope of the Federal Tort Claims Act. It is of the character dealt with in the Tucker Act, but in that Act Congress has 'expressly withheld consent to sue the Government in this court on claims for fees, salary and compensation of “officers of the United States”. 28 U.S.C.A. § 41(20). This exception is applied to every grade of employee of the Federal Government ; hence to libelant as “an employee of the United States of America by and through the Army Transport Service.” [United States v. Hartwell, 73 U.S. 385, 393, 6 Wall. 385, 393, 18 L.Ed. 830; Kennedy v. United States, 5 Cir., 1944, 146 F. 2d 26, 28; Oswald v. United States, 9 Cir., 1938, 96 F.2d 10, 13.] The exceptive allegations represent that during the period of libelant’s employment the Government vessels mentioned in the libel were operated “by the Army Transport Service, Transportation Corps, United States Army, an agency of the War Department * * and *" }, { "docid": "11391705", "title": "", "text": "however humble, and whose labor contributes in any degree, however slight to the accomplishment of the main object in which the vessel is engaged, are clothed by the law with the legal rights of mariners, ‘no matter what may be their sex, character, station, or profession.’ Ben.Adm. § 241.” Saylor v. Taylor, supra, 77 F. at page 479. “The word ‘crew’ does not have an absolutely unvarying legal significance,” South Chicago Company Coal & Dock Company v. Bassett, 1939, 309 U.S. 251, 258, 60 S.Ct. 544, 548, 84 L.Ed. 732. . The Laws of Oleron, Arts. VI, VII; The Laws of Wisbuy, Art. XVIII; The Laws of the Hanse Towns, Art. XXXIX; The Marine Ordinances of Louis XIV, Book Fourth, Art. XI; The Bouker No. 2, 2 Cir. 1917, 241 F. 831. Reed v. Can-field, 1832, Fed.Cas.No.U641. . Reed v. Canfield, supra. . 50 U.S.C.Appendix § 1291. This act extended the remedies available to seamen on private owned American vessels to seamen employed on United States vessels “as employees of the United States through the War Shipping Administration.” It thus gave effect to a congressional purpose to treat seamen employed through the War Shipping Administration as “merchant seamen” and not as “public vessel seamen” Cosmopolitan Shipping Company v. McAllister, 337 U.S. 783, 792, 69 S.Ct. 1317, 93 L.Ed. 1692; Johansen v. United States, 343 U.S. 427, 434, 72 S.Ct. 849, 96 L.Ed. 1051. . See Everett v. United States, 9 Cir. 1922, 284 F. 203; The John Berwind, 2 Cir. 1932, 56 F.2d 13; and Shilman v. United States, 2 Cir. 1947, 164 F.2d 649, all cited with approval, Fink v. Shephard Steamship Company, supra, 337 U.S. at page 815, 69 S.Ct. at page 1333. . It should be noted that the courts have historically referred to the rights to “wages and maintenance and cure” as a package benefit for seamen. It has never been contemplated that the benefits are severable, wages due and owing from one person and maintenance and cure from another. . Fink v. Shephard Steamship Company, supra, 337 U.S. at page 815, 69 S.Ct. at page" }, { "docid": "2881421", "title": "", "text": "might lie against the master whose alleged tort predicates these proceedings. The United States, however, cannot be sued without the consent of Congress, and such\" consent has not been conferred. The Federal Tort Claims Act, 60 Stat. 842, 28 U. 5. C. Sections 2671-2680, even if otherwise applicable, specifically excepts claims arising out of false arrest and false imprisonment. The Suits in Admiralty Act, 46 U.S.C.A. § 742, permits libels in personam to be brought against the United States in cases where a proceeding in admiralty could be maintained had the vessel been privately owned or operated. Because appellants could not have proceeded in admiralty against a private respondent, the instant suits, brought under the Act, must necessarily fail. The judgments will be affirmed. . Since on the relevant dates the War Shipping Administration (Clarification) Act, 57 Stat. 45, 50 U.S.C.A.Appendix, § 1291, was operative, the effect of such General Agency Agreement was to make the United States appellants’ employer. See Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692. . The trial judge held that since there was probable cause and malice was not shown no relief could be had on the theory of malicious ■ prosecution. He also held that libellants could not prevail on a cause of action based on false arrest or false imprisonment since they were, at the time of their arrest, subject either to naval jurisdiction or military law. . Section 688 reads as follows: “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with tlie right of trial by jury, and in such action all statutes of" }, { "docid": "135161", "title": "", "text": "maintenance and cure it is conceivable that a new cause of action based upon negligence may arise after the employment has terminated based upon a charge that the treatment so furnished was lacking in proper skill and care, thereby aggravating the original injury. Where such a claim is asserted the libel is permitted to stand. Since the libel.in the instant case does not plead such a theory of negligence, it must be dismissed, - We next consider the second claim which, is for maintenance and cure. Since the duty to provide these exténds until a seaman has reached his maximum possible cure, it is clear that even though a claim for negligence is barred, the claim for maintenance and cure may still be alive, at least in part. Therefore, the claim will not' be dismissed in its entirety, but may be asserted for the two-year period prior to the filing of the libel. .The motion to dismiss is granted with respect to any claim for maintenance and cure accruing prior to February 14th, 1950, and denied as to the claim after that .date. Settle order on notice. . . His Majesty’s Government v. Flying Arrow, D.C., 97 F.Supp. 182. . 48 U.S.C.A. § 745. . Osbourne v. United States, 2 Cir., 164 F.2d 767; Paschal v. North Atlantic & Gulf S. S. Co., D.C., 95 F.Supp. 293. . Pacific Steamship Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 73 L.Ed. 220; Cortes v. Baltimore Insular Lines, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368. . La Fontaine v. The G. M. McAllister, D. C., 101 F.Supp. 826. . Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 791-792, 69 S.Ct. 1317, 93 L.Ed. 1692; Jensen v. United States, 3 Cir., 184 F.2d 72. . 46 U.S.C.A. § 688. . Nolan v. General Seafoods Corporation, 1 Cir., 112 F.2d 515. . 46 U.S.C.A. § 745. . Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993. . Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850. . The Boulter No." }, { "docid": "2881420", "title": "", "text": "them no relief. However, it is well established that the situs of a tort determines whether or not it is maritime. In order to be maritime it must occur on navigable waters subject to admiralty jurisdiction. The present facts plainly show that the torts here charged are non-maritime in nature, committed as they were in the city of Bari and not on navigable waters. It follows that the district court lacked jurisdiction to entertain this litigation. Jurisdiction may be neither conferred nor waived by the parties, and it is the court’s duty to determine its existence. See Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462. It may be noted parenthetically that had the vessel been privately owned, or operated by a private principal, common law tort actions could have been maintained under the principles of comity, provided the lex loci delicti created an actionable tort for the conduct complained of. Under the present facts, absent the bar of the statute of limitations, such a suit might lie against the master whose alleged tort predicates these proceedings. The United States, however, cannot be sued without the consent of Congress, and such\" consent has not been conferred. The Federal Tort Claims Act, 60 Stat. 842, 28 U. 5. C. Sections 2671-2680, even if otherwise applicable, specifically excepts claims arising out of false arrest and false imprisonment. The Suits in Admiralty Act, 46 U.S.C.A. § 742, permits libels in personam to be brought against the United States in cases where a proceeding in admiralty could be maintained had the vessel been privately owned or operated. Because appellants could not have proceeded in admiralty against a private respondent, the instant suits, brought under the Act, must necessarily fail. The judgments will be affirmed. . Since on the relevant dates the War Shipping Administration (Clarification) Act, 57 Stat. 45, 50 U.S.C.A.Appendix, § 1291, was operative, the effect of such General Agency Agreement was to make the United States appellants’ employer. See Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692." }, { "docid": "11391697", "title": "", "text": "v. Shephard S. S. Company, supra, and Number 420, Gaynor v. Agwilines, Inc., 337 U.S. 810, 69 S.Ct. 1330, 93 L.Ed. 1709, in the October Term of 1948. Number 430, Gaynor v. Agwilines, Inc., is of particular interest in the present controversy and determinative of the outcome. Gaynor signed on aboard the S/S -Christopher Gadsden in 1945, after the -Clarification Act of 1943 . The vessel was owned by the United States, operated by the War Shipping Administration and managed by Agwilines, Inc., as agent. Gaynor went ashore when the vessel was in Charleston, S. C., and was injured. He instituted an action against Agwilines, Inc,, for wages and maintenance and cure. The District Court dismissed, 76 F.Supp. 617, the Court of Appeals for the Third Circuit affirmed, 169 F.2d 612, and the Supreme Court affirmed. Mr. Justice Reed preceded the delivery of the majority opinion of the court with this brief preamble: “These two cases [Fink and Gaynor] raise issues which, as the facts set out below indicate, are controlled by our decision in Cosmopolitan Shipping Co. v. McAllister, ante, [337 U.S.] p. 783, [69 S.Ct. 1317, 93 L.Ed. 1692, decided this day,” Id. 337 U.S. at page 811, 69 S.Ct. at page 1331], and used the following language in determining liability for maintenance and cure: “Although this case involves the right to wages and maintenance and cure, whereas McAllister and Fink concern damages for negligent injury, the reasoning and decisions in those cases are dispositive here. This is so because the right to maintenance and cure is ‘annexed to the employment,’ Cortes v. Baltimore Insular Line, 287 U.S. 367, 371 [53 S.Ct. 173, 77 L.Ed. 368]; see The Osceola, 189 U.S. 158 [23 S.Ct. 483, 47 L.Ed. 760]; is ‘an incident of the marine employer-employee relationship,’ Aguilar v. Standard Oil Co., 318 U.S. 724, 730 [63 S.Ct. 930, 87 L.Ed. 1107]; 1 Benedict, Admiralty (Sixth edition 1940) 61, 253; and because only the owner or the owner pro hac vice of a vessel is liable for wages, which also stem from the contract of employment. Shilman v. United" }, { "docid": "2829920", "title": "", "text": "said expense of his maintenance and cure amount to the sum of two thousand (2000) dollars.” As amended, the libel also set forth that, pursuant to the rules and regulations of the War Shipping Administration, libelant under date of December 14, 1949, transmitted in writing by registered mail to respondent his claim as set forth in the three causes of action; that “sixty days have elapsed since the aforesaid date and the Libellant has received no determination from the Respondent respecting this claim. Accordingly, the claim has been administratively disallowed by the Respondent.” The United States filed exceptions to the libel, asserting that the same should be dismissed, on the ground that it was apparent from the face of the libel that it was not filed within the two-year period of limitations prescribed in § 5 of the Suits in Ad miralty Act, 41 Stat. 526, 46 U.S.C.A. § 745. The district court sustained the exceptions, 93 F.Supp. 987, and entered a final decree on November 15, 1950, dismissing the libel. The Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., was enacted Ma'rch 9, 1920. Section 1 of the Act provides that no vessel owned by the United. States or in the possession of the United States or operated by or for the United States “shall hereafter, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions”. Section 2 provides that “in cases where if such vessel were privately owned or operated, * * a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States * * * provided that such vessel is employed as a merchant vessel * *.” Section 5, after making special provision for certain causes of action arising prior to the effective date of the Act, prescribes that “all other suits hereunder shall be brought within two years after the cause of action arises.” On March 24," }, { "docid": "13799213", "title": "", "text": "of the master and officers, or for maintenance and cure. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692; Weade v. Dichmann Co., 337 U.S. 801, 69 S.Ct. 1326, 93 L.Ed. 1704; Fink v. Shepard S. S. Co., 337 U.S. 810, 69 S.Ct. 1330, 93 L.Ed. 1709. Courts are not inclined to regard the contract as a demise of the ship if the end in view can conveniently be accomplished without the transfer of the vessel to the charterer. Even where words of demise are used, yet it must appear that the instrument taken as a whole was intended to operate as such or it will not be so construed. Reed v. United States, 11 Wall. 591, 78 U.S. 591, 20 L.Ed. 220. Cf. United States v. Shea, 152 U.S. 178, 14 S.Ct. 519, 38 L.Ed. 403; Ruiz Pichirilo v. Maysonet Guzman, 1 Cir., 290 F.2d 812; Vitozi v. Balboa Shipping Co., 1 Cir., 163 F.2d 286. Libellant relies upon Rodriguez v. Solar Shipping, Ltd., D.C., 169 F.Supp. 79, and Applewhaite v. The S. S. Sunprincess, D.C., 150 F.Supp. 827. The latter case is wholly inapplicable and does not merit discussion. In Rodriguez the court merely states that “[t]he terms of the charter contract, the intention of the parties, the employer-employee relationship, and the condition of the vessel at the time of the charter all raise triable issues of fact which cannot be settled by such a motion” (summary judgment). Here, however, we have nothing but the bare allegation of the libel to the effect that six respondents “owned, operated and/or controlled the Liberian SS PARAMARINA.” In the face of the charter which is of record and not controverted it is clear that the respondent, Saguenay Shipping, Ltd., was merely a time charterer and not responsible for the various causes of action alleged in the amended and supplemental libel. Moreover, while not deemed pertinent at this time, the employment contract entered into with libellant on July 17, 1957, stated the owner of the vessel to be Cia De Vapores Marina Ltda., with agents N. &" }, { "docid": "18949048", "title": "", "text": "DENMAN, Circuit Judge. This is an appeal from a decree dismissing a libel in personam against the appellee, brought itnder the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., because not filed within the two year period of limitation provided in § 5 of that Act as amended in 1932 to read: “Suits [as] authorized [in] this chapter * * * shall be brought within two years after the cause of action arises.” The cause of action in the libelant arose on January 23, 1943, and the libel in per-sonam against the United States was filed more than two years later on May 6, 1945. The libel was for personal injuries to the libelant seaman for which it was alleged that suit could be brought at law or in admiralty under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, which when enacted incorporated the two year period of limitation of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. In 1939 the latter Act was amended to extend its statutory limitation to three years, 45 U.S.C.A. § 56. Appellant contends that as to the Jones Act’s rights against private owners and vessels, this subsequent amendment of the Employers’ Liability Act enlarged the Jones Act’s limitation to three years. Cf. Streeter v. Great Lakes Transit Corp., D.C., 49 F.Supp. 466; Chisholm v. Cherokee-Seminole S. S. Corp., D.C., 36 F.Supp. 967; Hust v. Moore-McCormack Lines, 66 S.Ct. 1218. Appellee contends that the Jones Act embodied the provisions of the Employers’ Liability Act only as to the latter’s provisions as they were when so embodied and cites Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858, and Kendall v. United States, 12 Pet. 524, 9 L.Ed. 1181. Our view of the specific two year provision of § 5 of the Suits in Admiralty Act makes it unnecessary to determine this contention of appellant. Congress, as a war measure, enacted on March 24, 1943, Public Law No. 17, 57 Stat. 45, 50 U.S.C.A.Appendix, § 1291, providing as to all employees of the United" } ]

[ { "docid": "22098916", "title": "", "text": "deliberately indifferent in providing care, and/or (2) knew of or took part in implementing any policy that was deliberately indifferent to inmates’ needs for adequate medical care. Under the Eighth Amendment, a lack of proper inmate medical care can be “cruel and unusual punishment” only if “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Because “an inadvertent failure to provide adequate medical care” does not violate the Eighth Amendment, deliberate indifference does not include “a complaint that a physician has been negligent in diagnosing or treating a medical condition.” Id. It is only deliberate indifference — “ ‘an unnecessary and wanton infliction of pain’ ... [or acts] ‘repugnant to the conscience of mankind,’ ” id. — that constitutes conduct proscribed by the Eighth Amendment, d. 97 S.Ct. at 291 (quoting Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (Stewart, Powell, Stevens, JJ.)). Such deliberate indifference is impermissible whether it “is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care____” Gamble, 97 S.Ct. at 291 (footnotes omitted). Because section 1983 claims asserting violations of constitutional rights flow through the Fourteenth Amendment, an action brought by a state inmate against a state actor is limited by the reach of that amendment. Construing the protections of the Fourteenth Amendment in such cases, we have written that “an individual instance of negligence on the part of a jailor does not violate the due process clause of the Fourteenth Amendment, for that clause was intended to secure the individual from the arbitrary exercise of the power of government. But the clause does protect against arbitrariness and abuse of power, as distinguished from negligence or lack of due care.” Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182, 1187 (5th Cir.1986) (discussing Daniels v. Williams, 474 U.S. 327,106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). See also Daniels, 106 S.Ct. at 664 (indicating this standard applies to prisoners’" } ]

[ { "docid": "17406497", "title": "", "text": "572 (1980). But a motion to dismiss on the grounds of immunity asserts immunity from discovery, suit, and liability. See Johnson v. Johnson, 385 F.3d 503, 528 (5th Cir.2004). As stated above, the burden is on the plaintiff to disprove a defendant’s qualified-immunity defense. See Club Retro, 568 F.3d at 194. Therefore, unless the pleadings plausibly state a claim of an objectively unreasonable violation of clearly-established law, a defendant pleading qualified immunity is entitled to dismissal before full discovery is commenced. See Behrens v. Pelletier, 516 U.S. 299, 306-08, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994-95 (5th Cir.1995). III. DISCUSSION A. Qualified Immunity — Individual-Capacity Claims As discussed above, Devlin and Howell seek judgment on the basis of the pleadings because, they assert, Gill has failed to show the inapplicability of the qualified-immunity defense to her individual-capacity claims. Devlin and Howell’s first argument is that sexual-orientation discrimination is not a clearly established violation of federal law. (Mot. for J. on Pleadings 9.) First, the Court must determine whether Gill’s allegations, if true, establish a constitutional violation. See Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Gill alleges an equal-protection violation by Devlin and Howell for failing to hire her for a permanent position on the basis of her sexual orientation. To properly raise such a claim, Gill must “allege facts which, if proved, demonstrate that ‘[s]he received treatment different from that received by similarly-situated individuals and that the unequal treatment stemmed from discriminatory intent.’ ” Praylor v. Partridge, No. 7:03-CV-247-BD, 2005 WL 1528690, at *3 (N.D.Tex. June 28, 2005) (quoting Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir.2004)) (Kaplan, Mag. J.). See generally F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920) (discussing general requirements of Equal Protection Clause). A “[discriminatory purpose in an equal[-]protection context implies that the decision-maker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have" }, { "docid": "22589145", "title": "", "text": "PER CURIAM: Thelonious Velasquez filed a civil rights action challenging the collection of a DNA sample by prison officials for registration in a DNA database pursuant to Tex. Govt. Code § 411.148. Velasquez contended that the determination that he fell within the scope of the statute was based upon erroneous information in his prison records. Velasquez contended that the refusal by the defendants to correct his records had resulted in the denial of his release on parole. Velasquez sought damages and injunctive relief, including the deletion of his DNA sample from the state database. Velasquez consented to entry of judgment by the magistrate judge. The magistrate judge concluded that Velasquez had failed to allege a violation of a constitutional right. The magistrate judge dismissed the civil rights complaint as frivolous pursuant to 28 U.S.C. §§ 1915A & 1915(e)(2), and 42 U.S.C. § 1997e(c)(l). The magistrate judge dismissed any habeas claims asserted in the complaint without prejudice. Velasquez gave timely notice of his appeal. We review the magistrate judge’s dismissal of a complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. See Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999). The standard of review of dismissals under 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c)(l) is de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Because the magistrate judge referred to all three statutes in dismissing Velasquez’ claims, we review the issues raised on appeal de novo. Velasquez contends that the compelled collection of a DNA sample from him pursuant to state statute violated his rights under the Fourth Amendment. Every circuit court to consider this issue has held that the collection of DNA samples from felons pursuant to similar statutes does not violate the Fourth Amendment. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998) (“while obtaining DNA samples implicates Fourth Amendment concerns, it is reasonable in fight of an inmate’s diminished privacy rights, the minimal intrusion involved, and the legitimate government interest in using DNA to investigate and prosecute crimes”); Rise v. Oregon," }, { "docid": "23345578", "title": "", "text": "first providing the plaintiff an opportunity to amend, unless it is obvious from the record that the plaintiff has pled his best case. Although the district court did hold a Spears hearing in this case, and we have identified such hearings as appropriate vehicles for “remedying inadequacy in prisoner pleadings,” it was at the Spears hearing that Hale was allowed to amend his complaint to bring his Title II claim. The district court then dismissed the claim sua sponte pursuant to 28 U.S.C. § 1915(e)(2). Thus, it does not appear that Hale has had an opportunity to amend his Title II claim after being alerted to its deficiencies. Were we to affirm the district court without remanding, our opinion would have the same effect as a 12(b)(6) dismissal of Hale’s complaint for failure to state a claim without allowing him an opportunity to remedy the deficiencies in his complaint. Accordingly, we remand this case to the district court in order for the district court to allow Hale to amend his Title II allegations. Exercising judicial restraint, we do not proceed to the other two prongs of the Georgia inquiry at this time because such an inquiry, which would include resolution of constitutional issues, is unnecessary unless and until Hale has stated a violation of Title II. We vacate the portions of the district court’s decision below that address whether Hale’s allegations established violations of the Fourteenth Amendment and whether Title II validly abrogates state sovereign immunity for Hale’s claims. On remand Hale will have the opportunity to amend, and if he does so, the district court can determine whether Hale’s amended allegations state a claim for relief under Title II and any other issues that flow from the court’s determinations. For the aforementioned reasons, we VACATE and REMAND for proceedings consistent with our opinion. . See 28 U.S.C. § 1915(e)(2)(B)(ii). . Praylor v. Tex. Dep’t of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir.2005) (\"A dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is reviewed under the same de novo standard of review applicable to dismissals made pursuant" }, { "docid": "22816181", "title": "", "text": "PER CURIAM: Maurice Taylor filed a civil rights complaint under 42 U.S.C. § 1983 alleging that a Texas Department of Criminal Justice policy violates his free exercise rights under the First Amendment. The policy forbids inmates to wear beards, and Taylor alleges that his Muslim beliefs require him to wear a one-quarter-inch beard and that the policy violates his equal protection rights because the grooming policy allows beards for medical reasons but forbids them, for religious purposes. The district court dismissed Taylor’s complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B). Taylor appealed, then filed a motion for reconsideration, claiming for the first time that the grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc. The district court denied this motion. We affirm the dismissal, as frivolous, of the free exercise claim, dismiss for want of jurisdiction the appeal from the denial of the motion for reconsideration, and vacate the dismissal of the equal protection claim and remand it for further consideration. I. A complaint is frivolous if it lacks an arguable basis in law or fact, and a complaint lacks such a basis if it relies on an indisputably meritless legal theory. Harper v. Showers, 174 F.3d 716, 718 (5th Cir.1999). We review for abuse of discretion a dismissal of a prisoner’s complaint as frivolous. Id. II. Taylor’s free exercise claim is foreclosed by Green v. Polunsky, 229 F.3d 486 (5th Cir.2000), in which an inmate challenged the same grooming policy at issue here. He, like Taylor, contended that the policy violated his free exercise rights because prison officials would not let him wear a one-quarter-inch beard in accordance with the tenets of his Muslim faith, yet allowed prisoners with certain medical conditions to wear three-quarter-inch beards. Id. at 488. We disagreed and concluded that the policy was reasonably related to legitimate penological interests. Id. at 490. Because this decision is binding precedent, United States v. Short, 181 F.3d 620, 624 (5th Cir.1999), cert. denied, 528 U.S. 1091, 120 S.Ct. 825, 145 L.Ed.2d 694 (2000), the district court did not abuse its" }, { "docid": "22184573", "title": "", "text": "the administrative remedy procedures Harper pursued demonstrates deliberate indifference, contributing to the constitutional violations. II. Harper sued a number of Mississippi Department of Corrections officials and employees, alleging that they had subjected him to cruel and unusual punishment and that the classification system they employed denied him due process and equal protection of the laws. He seeks a declaratory judgment, recognizing the constitutional violations, and injunctive relief, enjoining further harassment. He also seeks compensatory damages for his emotional distress and mental anguish. The magistrate judge conducted a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), during which Harper primarily complained about the manner in which his classification status is determined. The magistrate judge determined that Harper failed to a state a claim that implicated any constitutional protections. Characterizing the claims as no more than Harper’s disagreement with his classification as an “extreme security risk,” a reasonable classification in light of Harper’s successful and attempted escapes and repeated possession of unauthorized items, the magistrate judge recommended that the complaint be dismissed as frivolous because it lacked an arguable basis in law. He did not specifically address the Eighth Amendment claim. The distinct court adopted the report and recommendation and dismissed the complaint as frivolous. III. A district court may dismiss as frivolous the complaint of a prisoner proceeding in forma pauperis if it lacks an arguable basis in law or fact. See Denton v. Hernandez, 504 U.S. 25, 31-32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998); see also 28 U.S.C. § 1915(e)(2)(B)® (allowing dismissal of in forma paupens action if frivolous). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997)). We review the dismissal of a frivolous complaint for abuse of discretion. See Denton, 504 U.S. at 33-34, 112 S.Ct. 1728; Davis, 157 F.3d" }, { "docid": "23511232", "title": "", "text": "approved time slots. But according to the evidence submitted, the pilot program has not yet been implemented. Upon remand, the district court should request new evidence concerning the pilot program. The pilot program, if implemented, would alter the TDCJ’s runestones policy such that it imposes a lessened burden on Mayfield’s religious exercise. Further, the pilot program, as described, would seemingly represent a less restrictive means for carrying out the TDCJ’s penological interests in limiting access to runestones. However, according to the evidence before us, the program has not yet been implemented and therefore does not impact our analysis of whether issues of fact currently exist as to May-field’s RLUIPA claim. Ill We AFFIRM the district court’s summary judgment dismissal to the extent that Mayfield seeks compensatory damages, as those claims are barred by 42 U.S.C. § 1997e(e). We AFFIRM the district court’s dismissal of non-damage claims against the TDCJ. Because no material issues of fact remain, we AFFIRM the district court’s grant of summary judgment as to May-field’s § 1983 claims against Johnson and Pierce concerning the possession of rune-stones. We VACATE the district court’s grant of summary judgment as to the following claims: Mayfield’s § 1983 claims for declaratory and injunctive relief against Johnson and Pierce, in their official capacities, based on TDCJ’s application of the outside-volunteer requirement for religious group meetings and based on the TDCJ’s denial of rune-related literature; May-field’s RLUIPA claims concerning the volunteer policy and the overall runestones policy to the extent they seek declaratory and injunctive relief against Johnson and Pierce, in their official capacities. Finally, when we reverse a district court’s decision to dismiss under the PLRA for failure to state a claim, it nullifies the strike imposed against a prisoner under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.1996). Because summary judgment was inappropriate as to some of Mayfield’s claims, the district court erred in concluding that Mayfield failed to state a claim under 28 U.S.C. § 1915(e). See Praylor v. Tex. Dep’t of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir.2005) (stating that we review" }, { "docid": "17406501", "title": "", "text": "Protection Clause). Seven years later, the Supreme Court concluded that an anti-sodomy statute violated the due-process rights of consenting, homosexual adults. See Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). After Romer and Lawrence, federal courts began to conclude that discrimination on the basis of sexual orientation that is not rationally related to a legitimate governmental interest violates the Equal Protection Clause. See, e.g., Johnson, 385 F.3d at 532; Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir.1996); Pratt, 803 F.Supp.2d at 153 n. 12; Massey, 256 F.Supp.2d at 1095; Park v. Trs. of Purdue Univ., No. 4:09-CV-087-JVB, 2011 WL 1361409, at *7 (N.D.Ind. Apr. 11, 2011); Praylor, 2005 WL 1528690, at *3; cf. Milligan-Hitt v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d 1219, 1233-34 (10th Cir.2008) (holding unconstitutionality of sexual-orientation discrimination not clearly established before Lawrence in June 2003). The Court concludes that in 2009, when Devlin and Howell are alleged to have failed to hire Gill as a permanent instructor because of her sexual orientation, the unconstitutionality of sexual-orientation discrimination lacking a rational relationship to a legitimate governmental aim was clearly established. Further, if the Court assumes, as it must, that Devlin and Howell comported themselves as alleged, then it must conclude that a reasonable person in their position would have understood that his conduct constituted sexual-orientation discrimination in violation of the Equal Protection Clause of the Constitution. See Johnson, 385 F.3d at 532 (“[A] state violates the Equal Protection Clause if it disadvantages homosexuals for reasons lacking any rational relationship to legitimate governmental aims.”)- See generally 2 L. Camille Hebert, Employee Privacy Law § 9:5 (2011); Todd A. DeMitchess et al., Sexual Orientation and the Public School Teacher, 19 B.U. Pub. Int. L.J. 65, 82-97 (2009). Accordingly, Gill’s pleading is sufficient to survive Devlin and Howell’s motion asserting qualified immunity against Gill’s equal-protection claims. B. Punitive Damages — Individual-Capacity Claim Devlin and Howell argue that Gill’s claim for punitive damages against them in their individual capacities fails because “the facts alleged by [Gill] do not demonstrate" }, { "docid": "1028019", "title": "", "text": "therapy did not constitute the requisite deliberate indifference. In Praylor’s case, the record reflects that he did not request any form of treatment other than hormone therapy. Testimony from the medical director at the TDCJ revealed that the TDCJ had a policy for treating transsexuals, but that Praylor did not qualify for hormone therapy because of the length of his term and the prison’s inability to perform a sex change operation, the lack of medical necessity for the hormone, and the disruption to the all-male prison. Cf. De’Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir.2003). Moreover, the director testified that Praylor had been evaluated on two occasions and denied eligibility for hormone treatment and that the TDCJ did provide mental health screening as part of its process for evaluating transsexuals. See Supre, 792 F.2d at 963. Accordingly, based upon the instant record and circumstances of Pray-lor’s complaint, the denial of his specific request for hormone therapy does not constitute deliberate indifference. See Meriwether, 821 F.2d at 413; Supre, 792 F.2d at 963. AFFIRMED; MOTION FOR INJUNCTION DENIED." }, { "docid": "18186919", "title": "", "text": "that he stipulated that the foregoing publications were medical reference texts but did not stipulate the truth of their contents. Except where otherwise indicated, we consider medical reference texts solely for the fact that they recognize GID or transsexualism and treatments for the condition. Dr. Schmidt attributed his misgivings in part to the “lack of a scientifically supported etiology of the condition”, but as petitioner’s expert Dr. Brown pointed out, the same could be said of most mental disorders listed in the DSM. The U.S. Supreme Court has also treated transsexualism as a serious medical condition, relying on its listing in the DSM-III and the American Medical Association’s Encyclopedia of Medicine (1989). See Farmer v. Brennan, 511 U.S. 825, 829 (1994). Two Courts of Appeals have considered, but found it unnecessary to decide, whether GID or transsexualism constitutes a serious medical need for purposes of the Eighth Amendment. See Praylor v. Tex. Dept. of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005), withdrawing 423 F.3d 524 (5th Cir. 2005) (holding that transsexualism constitutes a serious medical need for Eighth Amendment purposes); Farmer v. Moritsugu, 163 F.3d 610, 614-615 (D.C. Cir. 1998). But see Maggert v. Hanks, 131 F.3d 670 (7th Cir.1997), where the Court of Appeals for the Seventh Circuit, after concluding that the plaintiff inmate had failed to establish that he had gender dysphoria, observed in dicta that since treatment for gender dysphoria is “protracted and expensive” and the Eighth Amendment does not require that a prisoner be given medical care “that is as good as he would receive if he were a free person”, the Amendment “does not entitle a prison inmate to curative treatment for his gender dysphoria.” Id. at 671-672. Petitioner’s response to the administration of cross-gender hormones is especially persuasive regarding the diagnosis. Ms. Ellaborn observed that petitioner’s reaction to the effects of the hormones was essentially positive; that is, the hormones engendered a sense of well-being and a calming effect in petitioner — a well-documented phenomenon in genetic males suffering from GID who receive feminizing hormones, confirmed by both respondent’s and petitioner’s experts. By" }, { "docid": "18186918", "title": "", "text": "this Court to decide, and we do so on the basis of a range of factors, including GID’s inclusion in the DSM-IV-TR. See, e.g., American Medical Association, Complete Medical Encyclopedia 595, 1234 (Random House 2003); The Dictionary of Medical Terms 157 (4th ed. 2004); Dorland’s Illustrated Medical Dictionary, http://www.mercksource.com/pp/us/cns_hi dorlands: “Gender Identity Disorder and Transsexualism”, Merck Manuals Online Medical Library, http://www.merck.com./mmpe/ print/seel5/ch203/ch203b.html; Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 728, 1808 (2003); National Institutes of Health, U.S. National Library of Medicine, MedlinePlus Medical Encyclopedia, http://nlm.nih.gov/medlineplus/ency/article/ 001527.html; Sloane-Dorland Annotated Medical-Legal Dictionary 202-203, 233, 291, 310, 744 (1987). Transsexualism is also listed and described in the International Classification of Diseases, Ninth Revision, Clinical Modification (6th ed.) a publication of the American Medical Association used in the United States for assigning codes to various diagnoses and procedures. Similarly, various gender identity disorders, including transsexualism, are listed and described in the International Classification of Diseases, Tenth Revision, a 1992 publication of the World Health Organization that classifies diseases and health related problems. Respondent stresses on brief that he stipulated that the foregoing publications were medical reference texts but did not stipulate the truth of their contents. Except where otherwise indicated, we consider medical reference texts solely for the fact that they recognize GID or transsexualism and treatments for the condition. Dr. Schmidt attributed his misgivings in part to the “lack of a scientifically supported etiology of the condition”, but as petitioner’s expert Dr. Brown pointed out, the same could be said of most mental disorders listed in the DSM. The U.S. Supreme Court has also treated transsexualism as a serious medical condition, relying on its listing in the DSM-III and the American Medical Association’s Encyclopedia of Medicine (1989). See Farmer v. Brennan, 511 U.S. 825, 829 (1994). Two Courts of Appeals have considered, but found it unnecessary to decide, whether GID or transsexualism constitutes a serious medical need for purposes of the Eighth Amendment. See Praylor v. Tex. Dept. of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005), withdrawing 423 F.3d 524 (5th Cir. 2005) (holding that transsexualism constitutes a serious" }, { "docid": "17406498", "title": "", "text": "must determine whether Gill’s allegations, if true, establish a constitutional violation. See Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Gill alleges an equal-protection violation by Devlin and Howell for failing to hire her for a permanent position on the basis of her sexual orientation. To properly raise such a claim, Gill must “allege facts which, if proved, demonstrate that ‘[s]he received treatment different from that received by similarly-situated individuals and that the unequal treatment stemmed from discriminatory intent.’ ” Praylor v. Partridge, No. 7:03-CV-247-BD, 2005 WL 1528690, at *3 (N.D.Tex. June 28, 2005) (quoting Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir.2004)) (Kaplan, Mag. J.). See generally F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920) (discussing general requirements of Equal Protection Clause). A “[discriminatory purpose in an equal[-]protection context implies that the decision-maker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group.” Woods v. Edwards, 51 F.3d 577, 580 (5th Cir.1995) (quoting United States v. Galloway, 951 F.2d 64, 65 (5th Cir.1992)). In her complaint, Gill alleged that Devlin and Howell violated her equal-protection rights by failing to forward her name to the hiring committee and, thus, failing to hire her as a permanent English instructor on the basis of her sexual orientation. She further alleged that she was treated differently than other temporary instructors who were hired at the same time she was but who were all later hired as permanent instructors. The hired instructors allegedly were as qualified or less qualified as Gill. Before the permanent positions were filled, Gill claims she received only positive feedback on her teaching and that Howell encouraged her to apply for the permanent positions. Gill alleges that the only negative information she was given about her teaching was when Gill was accused of flirting with female students. Although Devlin and Howell argue that they had a legitimate and nondiscriminatory reason for not hiring her as" }, { "docid": "22801559", "title": "", "text": "exhaustion requirement functioned as a “legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action.” Id. (prescription tolled during exhaustion of state habeas remedies); see also Whitley v. Hunt, 158 F.3d at 886. While Harris pursued his administrative remedies from October 24, 1996, to July 14, 1997, the prescriptive period was tolled. Harris timely filed this federal civil rights claim within one year after the prescrip tive period began to run. Harris’s civil rights claims are not barred by prescription and his complaint cannot be said to lack “an arguable basis in law.” Section 1915(e)(2)(B)(i) does not provide a basis to dismiss Harris’s complaint. IV. THE CLAIM FOR DELIBERATE INDIFFERENCE The magistrate judge recommended dismissal of Harris’s suit under both sections 1915(e)(2)(B)(i) and (ii). The remaining question is whether Harris’s complaint states a claim upon which relief may be granted. We conclude that his complaint does allege facts that present a cognizable claim for relief. “[I]nadequate medical care by a prison doctor can result in a constitutional violation for purposes of a § 1983 claim when that conduct amounts to deliberate indifference to [the prisoner’s] serious medical needs, constituting] the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.1999) (internal quotation marks omitted) (alterations in original) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Under the “deliberate indifference” standard, a prison official, is not liable for the denial of medical treatment “unless the official knows of and disregards an excessive risk to inmate health or safety”. Stewart, 174 F.3d at 534 (citing Estelle, 429 U.S. at 104, 97 S.Ct. 285). While malpractice and negligent treatment do not rise to the level of a constitutional tort, see Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993), a claim of “unnecessary and wanton infliction of pain repugnant to the conscience of mankind,” can state a claim of a constitutional tort. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997) (citing Estelle, 429 U.S. at 105-106," }, { "docid": "1028017", "title": "", "text": "PER CURIAM: This court’s opinion, 423 F.3d 524 (5th Cir.2005), is hereby withdrawn, and the following opinion is substituted: Joshua Praylor, Texas prisoner # 1128305, appeals the denial of his civil rights complaint against numerous officials of the Texas Department of Criminal Justice (TDCJ) and the University of Texas and Texas Tech University health care systems (hereinafter, TDCJ). See 28 U.S.C. § 1915(e)(2). Praylor argues that the TDCJ’s denial of his request for hormone therapy to treat his transsexualism constitutes cruel and unusual punishment under the Eighth Amendment. Praylor seeks an injunction seeking to instruct the TDCJ to provide him with hormone thera py and brassieres. His motion is DENIED. A dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is reviewed under the same de novo standard of review applicable to dismissals made pursuant to Fed.R.Civ.P. 12(b)(6). Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.1999). The Cruel and Unusual Punishment Clause of the Eighth Amendment protects an inmate from improper medical care, but only if the care is “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This circuit has not addressed the issue of providing hormone treatment to transsexual inmates. Other circuits that have considered the issue have concluded that declining to provide a transsexual with hormone treatment does not amount to acting with deliberate indifference to a serious medical need. See, e.g., White v. Farrier, 849 F.2d 322 (8th Cir.1988) (acknowledging that transsexualism is a serious medical condition, but holding that declining to provide hormone therapy did not constitute deliberate indifference to that medical need); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.1987) (holding transsexual prisoner has no constitutional right to “any particular type of treatment, such as estrogen therapy”); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir.1986) (concluding that declining to provide hormone therapy did not constitute deliberate indifference when prison officials offered alternate treatment). Assuming, without deciding, that transsexualism does present a serious medical need, we hold that, on this record, the refusal to provide hormone" }, { "docid": "23511233", "title": "", "text": "concerning the possession of rune-stones. We VACATE the district court’s grant of summary judgment as to the following claims: Mayfield’s § 1983 claims for declaratory and injunctive relief against Johnson and Pierce, in their official capacities, based on TDCJ’s application of the outside-volunteer requirement for religious group meetings and based on the TDCJ’s denial of rune-related literature; May-field’s RLUIPA claims concerning the volunteer policy and the overall runestones policy to the extent they seek declaratory and injunctive relief against Johnson and Pierce, in their official capacities. Finally, when we reverse a district court’s decision to dismiss under the PLRA for failure to state a claim, it nullifies the strike imposed against a prisoner under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.1996). Because summary judgment was inappropriate as to some of Mayfield’s claims, the district court erred in concluding that Mayfield failed to state a claim under 28 U.S.C. § 1915(e). See Praylor v. Tex. Dep’t of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir.2005) (stating that we review dismissals for failure to state a claim under the PLRA under the same standard as dismissals under Fed.R.Civ.P. 12(b)(6)). Therefore, we also REVERSE the district court’s decision to impose a strike against Mayfield for failure to state a claim upon which relief could be granted. We REMAND for further proceedings consistent with this opinion. . TDCJ policy states that some form of security is required for religious group meetings, either in the form of a trained volunteer from outside the prison, a prison chaplain, or other TDCJ security personnel. . The summary judgment record does not clearly reflect how often the Odinist volunteer could come to the prison. See Part II.D.l, infra. . TDCJ has, since the filing of Mayfield's suit, stated its intention to institute a pilot program that would allow prisoners to purchase their own set of approved runestones. Under the pilot program the runestones are to be kept in the custody of the unit chaplain and checked out to inmates for use during approved time slots. However, according to the evidence submitted," }, { "docid": "14002572", "title": "", "text": "His conspiracy claim therefore cannot survive summary judgment. C. INTENTIONAL OR NEGLIGENT INFLICTION OF PHYSICAL AND EMOTIONAL INJURY Bussey claims that by depriving him of his constitutional rights, Defendants caused him to suffer physical injuries, emotional suffering and mental anguish. Bussey’s allegations of physical injury are unsubstantiated. Moreover, under the P.L.R.A., a prisoner may not recover damages for mental or emotional injury for a constitutional violation without a showing of actual physical injury. See 42 U.S.C. § 1997e(e); Thompson v. Carter, 284 F.3d 411, 417 (2d Cir.2002). Bussey has not made a showing of even a de minimis physical injury, as required by the P.L.R.A. Cf. Liner v. Goord, 196 F.3d 132, 135 (2d Cir.1999). Thus, his claims for damages for mental and emotional injury must be dismissed. D. ELEVENTH AMENDMENT IMMUNITY, QUALIFIED IMMUNITY, AND PERSONAL INVOLVEMENT Defendants also assert that they are entitled to both Eleventh Amendment and qualified immunity, and that Defendants Thornton and Thacker were not personally involved in the actions that are the subject of Bussey’s claims. Because the Court is allowing Bussey’s equal protection claim to go forward, the Court will consider these defenses. 1. Eleventh Amendment To the extent that. Bussey is suing Defendants in their official capacities, his claims are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (holding that a claim for damages against State officials in their official capacity is a claim against the State and is therefore barred by the Eleventh Amendment); Davis v. New York, 316 F.3d 93, 101 (2d Cir.2002) (holding that a prisoner’s § 1983 claims for damages against individual prison officials in their official capacities are barred by Eleventh Amendment). 2. Qualified Immunity The doctrine of qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Ayers v. Ryan, 152 F.3d 77, 82 (2d Cir.1998). Summary" }, { "docid": "17406500", "title": "", "text": "a permanent instructor, the Court may not consider this argument in a Rule 12(c) review. (Mot. to Dismiss 2.) After the accusation, Devlin allegedly began monitoring Gill’s classes and told her that TCCD and Texas “do not like homosexuals.” These facts, if assumed true, demonstrate discrimination against Gill on the basis of her sexual orientation, which can be a violation of the Equal Protection Clause. See Johnson v. Johnson, 385 F.3d 503, 530-31 (5th Cir.2004); Pratt v. Indian River Cent. Sch. Dist., 803 F.Supp.2d 135, 152 (N.D.N.Y.2011); Massey v. Banning Unified Sch. Dist., 256 F.Supp.2d 1090, 1094 (C.D.Cal.2003). Having found that Gill sufficiently has alleged the violation of a constitutional right, the Court now examines whether that right was clearly established under relevant law. In 1996, the United States Supreme Court held that arbitrary discrimination on the basis of sexual orientation violates the Equal Protection Clause. See Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (holding state constitutional amendment prohibiting civil-rights protections for gays, lesbians, and bisexuals violated Equal Protection Clause). Seven years later, the Supreme Court concluded that an anti-sodomy statute violated the due-process rights of consenting, homosexual adults. See Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). After Romer and Lawrence, federal courts began to conclude that discrimination on the basis of sexual orientation that is not rationally related to a legitimate governmental interest violates the Equal Protection Clause. See, e.g., Johnson, 385 F.3d at 532; Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir.1996); Pratt, 803 F.Supp.2d at 153 n. 12; Massey, 256 F.Supp.2d at 1095; Park v. Trs. of Purdue Univ., No. 4:09-CV-087-JVB, 2011 WL 1361409, at *7 (N.D.Ind. Apr. 11, 2011); Praylor, 2005 WL 1528690, at *3; cf. Milligan-Hitt v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d 1219, 1233-34 (10th Cir.2008) (holding unconstitutionality of sexual-orientation discrimination not clearly established before Lawrence in June 2003). The Court concludes that in 2009, when Devlin and Howell are alleged to have failed to hire Gill as a permanent instructor because of" }, { "docid": "23345579", "title": "", "text": "restraint, we do not proceed to the other two prongs of the Georgia inquiry at this time because such an inquiry, which would include resolution of constitutional issues, is unnecessary unless and until Hale has stated a violation of Title II. We vacate the portions of the district court’s decision below that address whether Hale’s allegations established violations of the Fourteenth Amendment and whether Title II validly abrogates state sovereign immunity for Hale’s claims. On remand Hale will have the opportunity to amend, and if he does so, the district court can determine whether Hale’s amended allegations state a claim for relief under Title II and any other issues that flow from the court’s determinations. For the aforementioned reasons, we VACATE and REMAND for proceedings consistent with our opinion. . See 28 U.S.C. § 1915(e)(2)(B)(ii). . Praylor v. Tex. Dep’t of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir.2005) (\"A dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is reviewed under the same de novo standard of review applicable to dismissals made pursuant to Fed. R. Civ. P. 12(b)(6).”). . Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 550 (5th Cir. 2001). . 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006). . Id. at 159, 126 S.Ct. 877. . Id. . Id. . See Bowers v. NCAA, 475 F.3d 524, 553 (3d Cir.2007) (\"[W]e are required to determine in the first instance if any aspect of the University’s alleged conduct forms the basis for a Title II claim.”); Buchanan v. Maine, 469 F.3d 158, 172-73 (1st Cir.2006) (\"Under Georgia, the court must determine in the first instance, on a claim-by-claim basis, which aspects of the State’s alleged conduct violated Title II. If the State’s conduct does not violate Title II, the court does not proceed to the next step in the analysis.” (internal footnote and citation omitted)). . See Bowers, 475 F.3d at 553 n. 31 (noting that the court of appeals is \"well situated” to determine whether any aspect of the defendant’s conduct forms the basis for a Title II" }, { "docid": "1028018", "title": "", "text": "deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This circuit has not addressed the issue of providing hormone treatment to transsexual inmates. Other circuits that have considered the issue have concluded that declining to provide a transsexual with hormone treatment does not amount to acting with deliberate indifference to a serious medical need. See, e.g., White v. Farrier, 849 F.2d 322 (8th Cir.1988) (acknowledging that transsexualism is a serious medical condition, but holding that declining to provide hormone therapy did not constitute deliberate indifference to that medical need); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.1987) (holding transsexual prisoner has no constitutional right to “any particular type of treatment, such as estrogen therapy”); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir.1986) (concluding that declining to provide hormone therapy did not constitute deliberate indifference when prison officials offered alternate treatment). Assuming, without deciding, that transsexualism does present a serious medical need, we hold that, on this record, the refusal to provide hormone therapy did not constitute the requisite deliberate indifference. In Praylor’s case, the record reflects that he did not request any form of treatment other than hormone therapy. Testimony from the medical director at the TDCJ revealed that the TDCJ had a policy for treating transsexuals, but that Praylor did not qualify for hormone therapy because of the length of his term and the prison’s inability to perform a sex change operation, the lack of medical necessity for the hormone, and the disruption to the all-male prison. Cf. De’Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir.2003). Moreover, the director testified that Praylor had been evaluated on two occasions and denied eligibility for hormone treatment and that the TDCJ did provide mental health screening as part of its process for evaluating transsexuals. See Supre, 792 F.2d at 963. Accordingly, based upon the instant record and circumstances of Pray-lor’s complaint, the denial of his specific request for hormone therapy does not constitute deliberate indifference. See Meriwether, 821 F.2d at 413; Supre, 792 F.2d at 963. AFFIRMED; MOTION" }, { "docid": "9769014", "title": "", "text": "indeed, wrote to Page and Gowdy to complain about other issues. Alexander never submitted a grievance regarding either the courtroom incident or the conditions in the isolation cell. After ten days in the Detention Facility, Alexander was transported back to the State Penitentiary in Parchman, where he remains incarcerated. Carroll is currently incarcerated in the Marshall County Correctional Facility in Holly Springs, Mississippi. B. Procedural History Alexander and Carroll brought suit under § 1983, alleging violations of their Eighth Amendment rights. Alexander claims that Page and Welch used excessive force against him in the courtroom incident, and both inmates claim that the conditions of confinement in the isolation cell were cruel and unusual. Additionally, Alexander and Carroll assert that Defendant Tippah County failed to instruct, supervise, control, or discipline the individual Defendants regarding the performance of their duties. Alexander and Carroll seek damages for pain and suffering, mental anguish, emotional distress, loss of enjoyment of life, all other damages arising from the alleged constitutional violations, injunctive relief, punitive damages, attorneys’ fees, and a declaration that the Defendants violated their civil rights. After filing an answer, the Defendants moved for summary judgment. The district court dismissed Alexander’s use-of-excessive-force claim because he failed to exhaust his administrative remedies. Regarding Alexander’s and Carroll’s conditions-of-confinement claims, the district court granted the Defendants’ motion for summary judgment, after finding that Alexander’s and Carroll’s Eighth Amendment rights had not been violated and that they were not entitled to any relief as a matter of law. II. DISCUSSION A. Alexander’s § 1988 Excessive Force Claim The district court dismissed Alexander’s excessive force claim, finding that he did not properly exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). We review de novo a district court’s dismissal of a § 1983 suit for failure to exhaust administrative remedies. Days v. Johnson, 322 F.3d 863, 866 (5th Cir.2003). The Prison Litigation Reform Act, § 1997e(a), declares: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other" }, { "docid": "14172394", "title": "", "text": "with deliberate indifference. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. In order to prove deliberate indifference in this context, Plaintiff must prove each Defendant “acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842, 114 S.Ct. 1970. If an official fails to alleviate a significant risk he should have perceived but did not, an inmate does not state a claim. Id. at 838, 114 S.Ct. 1970. Pursuant to 42 U.S.C. § 1997e(e), “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” In the Ninth Circuit Court, this requires “a prior showing of physical injury that need not be significant but must be more than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir.2002). Plaintiff presents no evidence of physical injury resulting from Defendants’ alleged failure to protect him from other inmates. Thus, to the extent Plaintiff seeks compensatory and punitive damages premised upon a violation of his Eighth Amendment right to be free from cruel and unusual punishment, § 1997e(e) bars his claim. See Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.1999) (affirming dismissal of inmate’s failure to protect claim under § 1997e(e) without allegation of physical injury). II. Fifth Amendment Although Plaintiffs Complaint is not a model of clarity, he appears to allege three due process claims and one equal protection claim under the Fifth Amendment : (1) a violation of his procedural due process rights in connection with the missing personal property; (2) a violation of his procedural due process rights in connection with the disciplinary proceedings conducted by DHO Griffith; (3) a violation of substantive due process as a result of the failure to heed Plaintiffs repeated requests for protective custody; and (4) discrimination against Plaintiff as a member of a class of sex offenders. A. Procedural Due Process 1. Personal Property Whether Defendant Handing acted negligently, or intentionally and without authority, Plaintiff cannot establish a claim for a" } ]

[ { "docid": "21186345", "title": "", "text": "of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.” [Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945); see: Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 76 S.Ct 273, 100 L.Ed. 199 (1956).] For grounds of appeal, appellant specifies certain alleged errors in the charge to the jury, to each of which appellant made timely objection as required by Rule 51 of the Rules of Civil Procedure. He first asserts that the instructions given “erroneously assumed that because the publication was quali-fiedly privileged, the burden was upon appellant to prove both malice and untruthfulness”. As to this, the District Court instructed the jury, inter alia: “Has plaintiff proved, by a preponderance of the evidence, that the libel contained in said letter of discharge was false? If you find that plaintiff has failed to carry that burden, then your deliberations would end and you would return a verdict for the defendant.” The law of Arizona as to burden of proof is “substantive” in character and, as such, governed the trial in the District Court. [See: Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Palmer v. Hoffman, 318 U.S. 109, 116-119, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 212, 60 S.Ct. 201, 84 L.Ed. 196 (1939); cf. Guaranty Trust Co. v. York, supra, 326 U.S. at 108, 65 S.Ct. 1464.] And it appears to be settled Arizona law “ that where, as here, defamatory matter is shown to be qualifiedly privileged, the burden of proving both falsity and malice rests upon the plaintiff. [See: Phoenix Newspapers, Inc. v. Choisser, 82 Ariz. 271, 312 P.2d 150 (1957); Broking v. Phoenix Newspapers, Inc., 76 Ariz. 334, 264 P.2d" } ]

[ { "docid": "19935971", "title": "", "text": "587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact.” Street v. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). The test is “whether the party bearing the burden of proof has presented a jury question as to each element in the case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). The plaintiff must present more than a mere scintilla of evidence. To support this position, he must present evidence on which the trier of fact could find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: “[t]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.” Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1177 (6th Cir.1996). Finally, while Kentucky state law is applicable to this case pursuant to Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court in a diversity action applies the standards of Fed.R.Civ.P. 56, not “Kentucky’s summary judgment standard as expressed in Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476 (1991).” Gafford v. General Electric Co., 997 F.2d 150, 165 (6th Cir.1993). BACKGROUND Plaintiff Marcus & Millichap (“M & M”) brought this action against Dan Skeeters, Real Estate Investment Advisors (“Skeeters”) and Bridgeland Investments, LLC (“Bridgeland”) asserting trademark, contract and tort theories of recovery. M & M amended its complaint to add a breach of fiduciary duty claim and a punitive damages claim. M & M filed a second amended complaint adding a claim of defamation. A permanent injunction was entered on trademark claims (Counts I — III of the complaint) on October 6, 2004. The Plaintiff additionally alleged tortious interference by the Defendants. The Defendants filed a counterclaim for declaratory judgment for lost funds. The Defendants amended" }, { "docid": "22453631", "title": "", "text": "action was impliedly rejected by an Illinois court in Rusher v. Smith, 70 Ill.App.3d 889, 26 Ill.Dec. 405, 410, 388 N.E.2d 906, 911-12 (1979). To be sure, the Rusher case is not binding because it is an Appellate Court decision. But it does nothing to detract from the voice of the Illinois Supreme Court in Mattyasovszky. That declaration of state law is, of course, binding on this Court. Erie RR Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Whether Missouri, MDC’s principal place of business, allows the equivalent of punitive damages is hotly disputed by the litigants. Although Missouri’s wrongful death act does not by its express terms provide for punitive damages, Mo.Ann.Stat. §§ 537.080 et seq. (Vernon 1979), it does authorize the trier of fact to consider the “mitigating or aggravating circumstances attending the death.” Mo.Ann.Stat. § 537.-090 (Vernon 1979). Damages for “aggravating circumstances” have been permitted by Missouri wrongful death statutes since 1855, and have consistently been considered punitive or exemplary by the Missouri Supreme Court. Parsons v. Missouri Pacific Ry., 94 Mo. 286, 6 S.W. 464, 466-67 (1888); Haehl v. Wabash Ry. Co., 119 Mo. 325, 24 S.W. 737, 741 (1893). Damages for “aggravating circumstances” in death cases depend on proof of “willful misconduct, wantonness, recklessness, or want of care indicative of indifference to consequences,” Wiseman v. Missouri Pacific Railroad, 575 S.W.2d 742 (Mo.App.1978), a standard commonly associated with the award of punitive damages. MDC argues that the case of Glick v. Ballentine Produce Inc., 396 S.W.2d 609 (1965), appeal dismissed, 385 U.S. 5, 87 S.Ct. 44, 17 L.Ed.2d 5 (1966), conclusively establishes that damages awarded because of “aggravating circumstances” are not punitive. But MDC’s argument, based on selective quotation, is not persuasive. In Glick, a wrongful death case, the plaintiffs attempted to recover damages in excess of the then existing statutory monetary limit. The Missouri Supreme Court disallowed the excess amount requested. In so doing, the Missouri Court stated that there was no recovery under Missouri law for punitive damages, “as such,” but that “aggravating circumstances” could be considered by the" }, { "docid": "15896366", "title": "", "text": "of blood to the lungs from the saddle thrombus. The plaintiff contends that defendant hospital was negligent in failing to have a doctor in attendance to give prompt and proper care to the decedent. Assuming without deciding that the record supports such a finding, there was no medical evidence adduced that such acts or omissions caused the alleged wrongful death of plaintiff’s father. It is a generally recognized rule in malpractice cases, as in other actions based upon negligence, that the plaintiff has the burden to prove a causal connection between the negligence complained of and the injury suffered. This rule rests upon the fundamental principle that one shall be liable only for that harm which he has caused. The [plaintiff] of course [has] the burden of proof on the issue of the fact of causation and must introduce evidence which affords a reasonable basis for one to conclude that it is more likely than not that the defendant’s conduct was a substantial factor in bringing about the result. “In negligence cases and especially in malpractice cases, proof of causal connection must be something more than consistent with the plaintiff’s theory of how the claimed injury was caused.” Proof of causation cannot rest on conjecture and the mere possibility of such causation is not enough to sustain the [plaintiff’s] burden of proof. Furthermore, when the causal relation issue is not one within the common knowledge of laymen, causation in fact cannot be determined without expert testimony. (Citations in text omitted.) Walstad v. University of Minnesota Hospitals, 442 F.2d 634, 639 (8th Cir. 1971). See also 1 S. Guard, Jones on Evidence, § 5.12 (6th Ed. 1972); W. Prosser, Handbook of the Law of Torts 241 (4th Ed. 1971). The rule is the same in Missouri. See Haase v. Garfinkel, 418 S.W.2d 108 (Mo. 1967); Kappel v. Slickman, 401 S.W.2d 451 (Mo.1966); Steele v. Woods, 327 S.W.2d 187 (Mo.1959); Williams v. Chamberlain, 316 S.W.2d 505 (Mo.1958). It is true, as argued by plaintiff, that certain situations may exist from which a jury may infer that an injury occurred as a result" }, { "docid": "15896367", "title": "", "text": "malpractice cases, proof of causal connection must be something more than consistent with the plaintiff’s theory of how the claimed injury was caused.” Proof of causation cannot rest on conjecture and the mere possibility of such causation is not enough to sustain the [plaintiff’s] burden of proof. Furthermore, when the causal relation issue is not one within the common knowledge of laymen, causation in fact cannot be determined without expert testimony. (Citations in text omitted.) Walstad v. University of Minnesota Hospitals, 442 F.2d 634, 639 (8th Cir. 1971). See also 1 S. Guard, Jones on Evidence, § 5.12 (6th Ed. 1972); W. Prosser, Handbook of the Law of Torts 241 (4th Ed. 1971). The rule is the same in Missouri. See Haase v. Garfinkel, 418 S.W.2d 108 (Mo. 1967); Kappel v. Slickman, 401 S.W.2d 451 (Mo.1966); Steele v. Woods, 327 S.W.2d 187 (Mo.1959); Williams v. Chamberlain, 316 S.W.2d 505 (Mo.1958). It is true, as argued by plaintiff, that certain situations may exist from which a jury may infer that an injury occurred as a result of malpractice on the part of a doctor or hospital, although there may be no expert testimony on that particular issue. See Steele v. Woods, supra, 327 S.W.2d at 199. But this is not such a case. Where the matter in issue involves knowledge beyond the grasp and ken of the average juror, highly trained experts, knowledgeable in the field, are needed to aid the jury in reaching a determination as to whether medical facts or omissions were violative of the standards expected of ordinarily careful, skillful and prudent doctors, acting under similar conditions. Haase v. Garfinkel, supra, 418 S.W.2d at 113. In the instant case the ultimate success of any diagnosis and treatment could only be determined in the light of highly specialized medical knowledge. Expert testimony in this regard was essential to support plaintiff’s conclusions as to causation in fact. This record is barren of any such testimony and proof, or logical and valid inferences, in this regard, and for this reason, plaintiff has failed to make a submissible case. Plaintiff theorizes that" }, { "docid": "12567346", "title": "", "text": "Light Co., 195 Mo. 606, 93 S.W. 951, 956, 7 L.R.A.,N.S., 293; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558. In said State, “the injured party may recover for any negligent act directly contributing to his injury, regardless of what other negligent act may contribute, concur, or co-operate to produce the injury,” Hild v. St. Louis Car Co., Mo.App., 259 S.W. 838, 841, and is given a cause of action against each person participating in a tort, and may obtain judgment against all tortfeasors, severally or jointly in one or separate causes of action, but he can have but one satisfaction. Myers v. Kennedy, 306 Mo. 268, 267 S.W. 810. It is also a rule in such cases, that proof of negligence is but one step toward a recovery for tort. Another step is to show that the negligence proved caused or contributed to cause the injury. One step without the other is fatal in such actions. Pate v. Big Bend, etc., Mo.App., 138 S.W. 2d 709, loc. cit. 710. Furthermore, Missouri courts hold, that if an act of negligence “is not legally injurious until certain consequences occur, it is not the mere doing of the act that gives rise to a cause of ac tion but the subsequent occurrence of damage or loss as the consequence of the act, and therefore, in such case, no cause of action accrues until the loss or damage occurs.” State ex rel. Nat’l. Lead Co. v. Smith, Mo.App., 134 S.W.2d 1061, 1066. The foregoing expressions have become axiomatic by repetition in the case law of the State of Missouri. Being pronouncements of substantive law of that State, they are binding on us. Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. Consequently, they are to be constantly kept in mind in determining the right of removability of tort actions, arising in the State of Missouri, in light of the present provisions of Section 1441, Title 28 U.S.C.A., Judiciary and Judicial Procedure, effective September 1, 1948. Section 1441, Title 28 U.S.C.A., relating to Removal" }, { "docid": "23256389", "title": "", "text": "the jury. We do, however, believe that the motion of defendants is worthy of extended consideration. Defendants claim that plaintiffs offered no proof tending to show that the duplex receptacle actually failed. They admit that evidence was offered which, if believed, tended to show that aluminum wire failed more often than did copper wire, that the fire started in the north wall of the cubbyhole, and that a duplex receptacle was mounted on that wall. Defendants assert, however, that plaintiffs’ only proof that aluminum wiring actually failed is that it is statistically more likely that aluminum will fail. They add that plaintiffs offered no proof that the symptoms of aluminum wiring failure actually occurred, nor did they show that the duplex failed to function. Defendants also claim that the jury had no method to determine that aluminum rather than copper wiring failed. They thus liken the present case to Rollins v. Avey, 296 S.W.2d 214 (Ky.1956). In Rollins, plaintiff had a furnace installed in her living room. Thirty or forty minutes thereafter, a gas explosion occurred in the house. The plaintiff had three other gas appliances in her home, and there was no evidence that the furnace exploded or was destroyed. The Kentucky Supreme Court affirmed a directed verdict for defendants, finding that plaintiff’s failure to determine which instrumentality failed was fatal to plaintiff’s case. Similarly, defendants assert, plaintiffs have not pinpointed the instrumentality causing the fire here. We are, of course, bound to apply Kentucky law to the substantive issues in this diversity case. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In determining whether plaintiffs presented enough evidence of cause in fact to avoid a directed verdict, the relevant standard in consideration of such a motion is that plaintiff is entitled to the most favorable inferences and construction attributable to the evidence. If such evidence is so regarded and substantially tends to support the cause of action, the verdict should not be directed against him. Fields v. Western Kentucky Gas Co., 478 S.W.2d 20, 22 (Ky.1972). The Kentucky view regarding when evidence" }, { "docid": "23268344", "title": "", "text": "ground. In federal courts under Rule 2 Fed.R.Civ.P., there is but one form of action — the civil action — and all procedural distinctions between law and equity have been abolished. Myzel v. Fields, 386 F.2d 718, 741 (8th Cir. 1967) ; Groome v. Steward, 79 U.S.App. D.C. 50, 142 F.2d 756 (1944); 2 J. Moore, Federal Practice ¶ 2.02(1) (2d ed. 1953). And where the district court has jurisdiction over the subject matter it has the power to afford the parties relief to which they are entitled on the facts, applying rules of both law and equity. Id., C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1043 (1969). Where jurisdiction is premised on diversity of citizenship it is of course axiomatic that the federal district court is required to apply state substantive law and federal procedural law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This rule applies to state equitable as well as legal rules. Ruhlin v. New York Life Insurance Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290 (1938). Accordingly, to the extent that distinctions in Arkansas between an action in ejectment and an action to quiet title are substantive, the federal court is bound to recognize them; to the extent that they are procedural, it must ignore them. Arkansas cases stand for the proposition that the purpose of the possessory requirement in a plaintiff’s action to quiet title is to protect the defendant’s constitutional right to trial by jury. See, e. g., Patterson v. McKay, 202 Ark. 241, 150 S.W.2d 196 (1941); Pearman v. Pearman, 144 Ark. 528, 222 S.W. 1064 (1920). It is reasoned that where the defendant is in possession of the disputed land, the plaintiff has an adequate legal remedy — ejectment. To extend equitable relief to the plaintiff in such circumstances would deprive defendant of a jury trial. Thus the primary substantive difference, and the only one relevant to this case, between the legal action of ejectment and the equitable action of quiet title, in the context of Arkansas’ requirement" }, { "docid": "11569390", "title": "", "text": "to find that April Richardson was physically incapable of performing any task normally associated with married life prior to the Richardson’s dissolution of marriage which occurred some two years following the accident. Based on this evidence, the defendant’s motions for judgment notwithstanding the verdict as to April Richardson’s claim for personal injuries and Terry Richardson’s claim for loss of April Richardson’s services must be denied. Under the Missouri Wrongful Death Statute, however, plaintiffs failed to meet their burden of showing the causal connection between the defendant’s defective products and the death of Colin Richardson. Hawkins v. Whittenberg, 587 S.W.2d 358, 361 (Mo.App.1979); Shelton v. Bruner, 449 S.W.2d 673, 679-680 (Mo.App.1969); see MAI 20.01 (3d ed. 1981). The test as to causal connection is whether the facts show that absent the alleged wrongful act the fatal injury would not have been sustained, and if the evidence leaves the element of causal connection “in the nebulous twilight of speculation, conjecture and surmise,” plaintiffs have not met their burden. James v. Sunshine Biscuits, Inc., 402 S.W.2d 364, 375 (Mo.1966); Shelton v. Bruner, 449 S.W.2d at 680. Causation may be proved by circumstantial evidence, and it is sufficient if the facts proved are of such a nature and are so connected and related to each other that the existence of a causal connection may be reasonably inferred. George v. Howard Construction Co., 604 S.W.2d 685, 692 (Mo.App.1980). However, if the facts of the case are such that no lay person would be expected to know the cause of death or if the reasonable inference derived from the facts is that the fatal injuries were caused by something other than the defendant’s alleged wrongful acts, “an expert is necessary and he must be reasonably certain or no substantial evidence is offered on the issue of causation.” James v. Sunshine Biscuits, Inc., 402 S.W.2d at 371-372 (Mo.1966). In the case at bar, the only reasonable inference which the jury could draw from the facts was that Colin Richardson’s death was caused by the negligence of the defendants Stephenson and Berkovich since their acts caused a 50" }, { "docid": "1874609", "title": "", "text": "was rolled from used railroad rails, contained a crack or defect which had existed previously in the railroad rail and which was not detected by defendant prior to rolling. Next, it is said that the crack or defect was created in the bulb tee during rolling and cooling. The fatal weakness of both theories is that they are completely without factual support. There was no evidence establishing, or from which a legitimate inference could be drawn, that the piece of steel from which the bulb tee was made was defective in any respect, or that a crack or defect was created in the process of rolling and cooling the bulb tee. We are in full accord with plaintiff’s contention that facts necessary to sustain a recovery may be established by circumstantial evidence. Under Missouri law, the only qualification is “ * * that the evidence must rise above the stature of guesswork, speculation, and conjecture, and must point to the desired conclusion with such a degree of certainty as to make the particular conclusion more reasonable and probable than any other that might be drawn. This for the obvious reason that if the circumstances afford no more than an equal basis for two or more inconsistent conclusions as to the existence of the essential fact, then in that event the party having the burden of proof may not be said to have sustained his obligation. Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Schoen v. Plaza Express Co., Mo.Sup., 206 S.W.2d 536; Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663.” Riley v. St. Louis Public Service Co., Mo. App., 245 S.W.2d 666, at page 670. The circumstantial evidence upon which plaintiff relies, whereby the course and presence of the bulb tee was accounted for from the time it was delivered by defendant at Hutchinson, Kansas, until it broke under plaintiff’s weight which evidence also afforded some proof that the bar was not injured or damaged in handling, does not have such qualitative value that the necessary facts to support a verdict may be inferred and must" }, { "docid": "22413567", "title": "", "text": "that place the burden of proof on the defendant who attacks the personal jurisdiction of the court, appellant reasons that a federal diversity court in Texas must do likewise under the decisions following Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938), that characterized placement of the burden of proof as a substantive rule governed by state law rather than a procedural rule. We are unpersuaded by appellant’s Erie logic. The Texas cases cited by appellant concern the operation of Rule 120a, Texas Rules of Civil Procedure, under which a nonresident defendant may make a special appearance in state court to challenge the court’s jurisdiction over his person on the grounds that he is not amenable to process in Texas. As appellant correctly notes, the burden of proof in a Rule 120a special appearance proceeding rests on the movant, the defendant. Taylor v. American Emery Wheel Works, 480 S.W.2d 26, 31 (Tex.Civ.App. — Corpus Christi 1972, no writ); Roquemore v. Roquemore, 431 S.W.2d 595, 600 (Tex.Civ.App. —Corpus Christi 1968, no writ); Thode, supra note 6, at 319. Appellant also correctly notes that in diversity cases questions concerning the burden of proof are ordinarily controlled by state law. E. g., Jones & Laughlin Steel Corp. v. Math-erne, 5 Cir. 1965, 348 F.2d 394. The flaw in appellant’s argument is that Rule 120a, promulgated in 1962 by the Texas Supreme Court to create an exception to the infamous Texas rule that an appearance by a nonresident defendant to challenge the jurisdiction of the court over his person itself confers jurisdiction, is exactly the sort of state procedural accessory that federal courts are not bound to don whenever they en.ter the diversity courtroom. Speaking for the Supreme Court in Hanna v. Plumer, 1965, 380 U.S. 460, 472-473, 85 S.Ct. 1136, 1144-1145, 14 L. Ed.2d 8, 17-18, Chief Justice Warren wrote: [T]he constitutional provision for a federal court system . . . carries with it congressional power to make rules governing the practice and pleading in those courts .... “One of the shaping purposes of the" }, { "docid": "3244137", "title": "", "text": "caused separate or enhanced injuries in the course of an initial accident brought about by an independent cause.” Id. The court set forth the elements to be proved in an enhanced injury or second collision case: To recover under the second collision doctrine, the plaintiff has the burden of proving that the product was defective in condition or design when it left the hands of the manufacturer. To establish that the product was defective, plaintiff must show that he was injured while using the product in its intended manner. Further, the plaintiff has the burden of proving that the product was unreasonably dangerous; i.e., the product must be dangerous to an extent beyond that which would be contemplated by the user with ordinary knowledge common to the community as to its characteristics. If there is evidence from which a jury could find that an unreasonably dangerous condition existed and that the defect caused the injury, the evidence is sufficient to support a jury verdict against the manufacturer. Id. at 688 (internal citations omitted). Cryts focused on the elements of proof regarding the alleged defective design and did not discuss the burden of proof to be utilized in apportioning liability for injuries between the tortfeasor whose negligence caused the accident and the manufacturer of the defective product. The latter issue was addressed in Richardson v. Volkswagenwerk, A.G., 552 F.Supp. 73 (W.D.Mo.1982). Basing its view of Missouri law on the Missouri Supreme Court’s decisions in Glick v. Ballentine Produce, Inc., 396 S.W.2d 609 (Mo.1965) and Barlow v. Thornhill, 537 S.W.2d 412 (Mo.1976) (en banc), the court held “that a strict liability defendant in a second collision ease is to be held jointly and severally liable as a concurrent tortfeasor whenever the jury finds that the defendant’s defective product was a substantial factor in producing an indivisible injury to the plaintiff.” Richardson, 552 F.Supp. at 81. Summarizing the burden of proof it would apply, the court stated: [T]his Court concludes that a plaintiffs burden of proof in a second collision-strict liability case should be deemed satisfied against the manufacturer if it is shown" }, { "docid": "4799618", "title": "", "text": "out, I can’t hold her”; and another witness who testified that he was in his home near the road and heard someone say substantially the same thing. There was no proof by any expert or other witness as. to how the car was constructed or how it should have been constructed. There was no proof of any defect in the car of any kind. There was no proof as to any inspection or care given the car during the few months the car had been driven. Counsel for plaintiff contended that the proof showing that the car left the road coupled with the proof that plaintiff’s decedent said he could not steer the car was sufficient proof to go to the jury on the question of the defendant’s negligence in manufacturing a defective car, and that the defect was the cause of the accident. On motion of defendant, I directed a verdict in favor of defendant at the close of plaintiff’s case. The case is now before me on motion for a new trial. Prior to the decision of the Erie case (Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, decided April 25, 1938, by the Supreme Court of the United States) I had always charged the jury that contributory negligence was a defense and that the burden of proving that defense was upon the defendant. I had also held that I would not entertain a motion for directed verdict until all of the proofs were in and both parties had rested. Since the decision in the Erie case, I have followed the Michigan Supreme Court and reversed myself on both of these questions in conformity with the Erie case, which held that “a federal court exercising jurisdiction over such a case on the ground of diversity of citizenship, is not free to treat this question as one of so-called ‘general law’, but must apply the state law as declared by the highest state court.” Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (Syllabus)." }, { "docid": "23256390", "title": "", "text": "occurred in the house. The plaintiff had three other gas appliances in her home, and there was no evidence that the furnace exploded or was destroyed. The Kentucky Supreme Court affirmed a directed verdict for defendants, finding that plaintiff’s failure to determine which instrumentality failed was fatal to plaintiff’s case. Similarly, defendants assert, plaintiffs have not pinpointed the instrumentality causing the fire here. We are, of course, bound to apply Kentucky law to the substantive issues in this diversity case. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In determining whether plaintiffs presented enough evidence of cause in fact to avoid a directed verdict, the relevant standard in consideration of such a motion is that plaintiff is entitled to the most favorable inferences and construction attributable to the evidence. If such evidence is so regarded and substantially tends to support the cause of action, the verdict should not be directed against him. Fields v. Western Kentucky Gas Co., 478 S.W.2d 20, 22 (Ky.1972). The Kentucky view regarding when evidence of causation is sufficient to reach a jury is discussed in Huffman v. SS. Mary & Elizabeth Hospital, 475 S.W.2d 631 (Ky. 1972): [Ljegal causation may be established by circumstantial evidence. While reasonable inferences are permissible, a jury verdict must be based on something other than speculation, supposition or surmise. The type of evidence that will support a reasonable inference must indicate the probable as distinguished from a possible cause .... There must be sufficient proof to tilt the balance from possibility to probability. Id. at 633 (citations omitted) (emphasis in original). Where an incident could result from more than one cause, plaintiff tips the balance from possibility to probability only by ruling out other theories of causation: [Wjhere an injury may as reasonably be attributed to a cause that will excuse the defendant as to a cause that will subject it to liability, no recovery can be had. Sutton’s Adm’r. v. Louisville & N. R. Co., 168 Ky. 81, 181 S.W. 938, 940 (1916). That is, it must be more likely than not that" }, { "docid": "11569387", "title": "", "text": "verdict proves that the jury did, in fact, find that the vehicle was defective and that the defect caused some of the injuries. Even though the plaintiffs could have recovered their total damages from defendant VWOA had they argued and instructed on the correct law, plaintiffs have not appealed from the judgments entered in this case nor have they moved for a new trial. The plaintiffs, through their instructions, imposed on themselves a greater burden of proof than was necessary, and under Missouri law, the defendant is in no position to complain. Joly v. Wippler, 449 S.W.2d 565, 569 (Mo.1970); Stewart v. Small, 5 Mo. 525 (Mo.1839); Martin v. Oliver, 603 S.W.2d 674, 675 (Mo.App.1980); Steele v. St. Louis Mutual Life Ins. Co., 3 Mo.App. 207 (1876) (The giving of an instruction which only serves to cast an additional burden on the respondent is harmless error of which the appellant cannot complain.) Turning to the defendant’s 124 alleged points of error, the Court will address only those which are not clearly without merit. Sufficiency of Evidence At the outset, defendant VWOA urges this Court to set aside the three jury verdicts in plaintiffs’ favor because the plaintiffs did not make a submissible case as to causation. The standards for ruling a motion for judgment notwithstanding the verdict are well defined. In Cleverly v. Western Electric Company, 594 F.2d 638, 641 (8th Cir.1979), the Eighth Circuit held that, for purposes of such a motion, all evidence must be construed in the light most favorable to the nonmoving party; all conflicts in evidence must be resolved in a manner favoring the verdict; all facts which the opposing party’s evidence tends to prove must be assumed; and the opposing party must be given the benefit of all reasonable inferences. In the final analysis, the motion may be granted only if reasonable minds could not differ as to the conclusion to be drawn. After careful evaluation in accordance with the Missouri indivisible injury rule outlined above, this Court believes the evidence presented by plain tiffs sufficient for the jury to find that the defendant’s" }, { "docid": "11569386", "title": "", "text": "trial on the theory that the defendants were only liable for those additional injuries caused by the defective products when, in fact, the injuries were not divisible as a matter of law. The jurors were misinformed during plaintiffs’ opening statement, closing argument and in the instructions that “[t]he burden was upon the plaintiffs to prove by a preponderance of the evidence what portion of any injury was caused by the alleged design defect which injury would not have occurred from the collision absent any such defect\" and the verdict directors were worded accordingly. (Emphasis supplied); see Instructions No. 4, 8, 9, 12 and 13. Taken as a whole, these instructions directed the jury to allow recovery for those specific injuries which would not have been sustained but for the defective product and, as such, they are sole cause instructions. Under Missouri law, plaintiff’s burden was to prove, and the jury’s duty was to find, that VWOA’s defective product was a substantial factor, rather than the sole factor, in producing the plaintiff’s indivisible injuries. The jury’s verdict proves that the jury did, in fact, find that the vehicle was defective and that the defect caused some of the injuries. Even though the plaintiffs could have recovered their total damages from defendant VWOA had they argued and instructed on the correct law, plaintiffs have not appealed from the judgments entered in this case nor have they moved for a new trial. The plaintiffs, through their instructions, imposed on themselves a greater burden of proof than was necessary, and under Missouri law, the defendant is in no position to complain. Joly v. Wippler, 449 S.W.2d 565, 569 (Mo.1970); Stewart v. Small, 5 Mo. 525 (Mo.1839); Martin v. Oliver, 603 S.W.2d 674, 675 (Mo.App.1980); Steele v. St. Louis Mutual Life Ins. Co., 3 Mo.App. 207 (1876) (The giving of an instruction which only serves to cast an additional burden on the respondent is harmless error of which the appellant cannot complain.) Turning to the defendant’s 124 alleged points of error, the Court will address only those which are not clearly without merit. Sufficiency of" }, { "docid": "13943902", "title": "", "text": "with sufficient evidence to meet this burden. Under the minority viewpoint the bailee cannot meet the burden or avoid liability merely by showing that the damage was the result of fire. Threl-keld v. Breaux Ballard Inc., 296 Ky. 344, 177 S.W.2d 157, 161 (1944). The bailee is required to go forward with evidence to show that he has exercised due care or to explain the loss other than by the mere fact of fire. In Threlkeld v. Breaux Ballard Inc., supra, 177 S.W.2d at 161, 162, the Kentucky Court stated that “ * * * the rule enunciated in * * * [Fleischman, Morris & Co. v. Southern Ry. Co., 76 S.C. 237, 56 S.E. 974, 9 L.R.A..N.S., 519 (1907)] * * * is sound and should be adhered to.” The rule in Fleischman, supra, states that: “ * * * the bailor must prove delivery to the bailee and his refusal to return as required by the contract of bailment. The burden is then on the bailee to prove that he has not converted the property, and this he may do by showing its loss and the manner of its loss; but by the manner of loss is meant, not only the isolated fact of destruction by fire, or loss by theft or otherwise, but the circumstances connected with the origin of the fire or other cause of loss or injury, as far as known to the bailee, and the precautions taken to prevent the loss or injury.” The District Judge found however that the Appellant “ * * * failed to prove his case by a preponderance of evidence * * * [and that] * * * [t]he testimony for plaintiff is no more creditable than the [Appellee] defendant’s.” Upon consideration of the appellate file and the applicable Kentucky law, which must be applied, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we are convinced that at the very least a bailment situation existed between the parties. Beardsley v. Broach, 310 S.W. 2d 539 (Ky.1958). The Appellant proved delivery of the" }, { "docid": "3244138", "title": "", "text": "on the elements of proof regarding the alleged defective design and did not discuss the burden of proof to be utilized in apportioning liability for injuries between the tortfeasor whose negligence caused the accident and the manufacturer of the defective product. The latter issue was addressed in Richardson v. Volkswagenwerk, A.G., 552 F.Supp. 73 (W.D.Mo.1982). Basing its view of Missouri law on the Missouri Supreme Court’s decisions in Glick v. Ballentine Produce, Inc., 396 S.W.2d 609 (Mo.1965) and Barlow v. Thornhill, 537 S.W.2d 412 (Mo.1976) (en banc), the court held “that a strict liability defendant in a second collision ease is to be held jointly and severally liable as a concurrent tortfeasor whenever the jury finds that the defendant’s defective product was a substantial factor in producing an indivisible injury to the plaintiff.” Richardson, 552 F.Supp. at 81. Summarizing the burden of proof it would apply, the court stated: [T]his Court concludes that a plaintiffs burden of proof in a second collision-strict liability case should be deemed satisfied against the manufacturer if it is shown that the defective product was a substantial factor, rather than the sole factor, in producing damages over and above those which were probably caused as a result of the original collision. Furthermore, the extent of. the manufacturer’s liability depends upon whether or not the injuries involved are divisible such that the injuries .can be clearly separated and attributed either to the manufacturer or the original tortfeasor. If the manufacturer’s conduct is found to be a substantial factor in causing an indivisible injury such as paraplegia, quadriplegia, death, etc., then absent a reasonable basis to determine ■ which wrongdoer actually caused the harm, the defendants are jointly and severally liable for plaintiffs total injuries. Id. at 83. In McDowell v. Kawasaki Motors Corp. USA 799 S.W.2d 854 (Mo.Ct.App.1990), the Missouri Court of Appeals rejected Huddell and cited Richardson with approval: To make a submissible case, the plaintiff need not prove with specificity those injuries actually caused by the negligence of the original tort-feasor and those caused by the specific defects in the product. The [Richardson ]" }, { "docid": "22413566", "title": "", "text": "granted defendants-appellees’ motion to dismiss for want of jurisdiction over the person. II. The power of a federal court entertaining a suit based on diversity of citizenship to exercise jurisdiction over the persons of non-resident defendants turns on two independent considerations. The law of the state in which the federal court sits must confer jurisdiction over the persons of the defendants, and if it does, the exercise of jurisdiction under state law must comport with basic due process requirements of the United States Constitution. Jetco Electronic Industries, Inc. v. Gardiner, 5 Cir. 1973, 473 F.2d 1228, 1232; Atwood Hatcheries v. Heisdorf & Nelson Farms, 5 Cir. 1966, 357 F.2d 847, 852. See 2 Moore’s Federal Practice ¶ 4.41-1 [3] (2d ed. 1974). At the threshold of this two-step analysis in the case at bar, however, we confront a mechanical question over which the parties strongly disagree. Plaintiff-appellant contends that defendants-appellees bore the burden of producing evidence and persuading the district court on their motion to dismiss for want of personal jurisdiction. Citing Texas court decisions that place the burden of proof on the defendant who attacks the personal jurisdiction of the court, appellant reasons that a federal diversity court in Texas must do likewise under the decisions following Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938), that characterized placement of the burden of proof as a substantive rule governed by state law rather than a procedural rule. We are unpersuaded by appellant’s Erie logic. The Texas cases cited by appellant concern the operation of Rule 120a, Texas Rules of Civil Procedure, under which a nonresident defendant may make a special appearance in state court to challenge the court’s jurisdiction over his person on the grounds that he is not amenable to process in Texas. As appellant correctly notes, the burden of proof in a Rule 120a special appearance proceeding rests on the movant, the defendant. Taylor v. American Emery Wheel Works, 480 S.W.2d 26, 31 (Tex.Civ.App. — Corpus Christi 1972, no writ); Roquemore v. Roquemore, 431 S.W.2d 595, 600 (Tex.Civ.App. —Corpus" }, { "docid": "15998346", "title": "", "text": "basis for denial of their motion. In addition, Rule 37(a)(4), on which plaintiffs rely, provides for an award of expenses and sanctions following the filing of a motion to compel. Plaintiffs haVe not filed a motion to compel concerning this matter. Therefore, no sanction is appropriate under Rule 37(a)(4). Moreover, the information provided in the King affidavit is not material to this Court’s resolution of AWI’s motion for summary judgment. For these reasons, plaintiffs’ motion to strike and for sanctions will be denied. B. AWI’s Motion for Summary Judgment. 1. Substantive Law. As jurisdiction of this case is based on diversity of citizenship, the Court applies the substantive law of the forum state in which it sits, Missouri. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Missouri law, a plaintiff must establish a causal connection between the conduct of a defendant and the resulting injury to the plaintiff in order to maintain a negligence cause of action. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984) (citing Warner v. St. Louis & M.R.R. Co., 178 Mo. 125, 77 S.W. 67 (1903)). To recover in strict liability, as with any tort theory, the “plaintiff must establish some causal relationship between the defendant and the injury-producing agent.” Id. Missouri law does not guarantee relief to every deserving plaintiff. Id. at 246. If an injury may have resulted from more than one cause, the plaintiff must show with reasonable certainty that the cause for which a particular defendant is liable produced the injury. If the evidence leaves it to conjecture, the plaintiffs action must fail. Id. (quotation omitted). In a wrongful death case based on asbestos exposure, the Missouri Supreme Court has stated a plaintiff must establish that a defendant’s products directly contributed to the death in order to recover against that defendant. Hagen v. Celotex Corp., 816 S.W.2d 667, 669 (Mo. banc 1991). There must be “evidence that the product of each defendant sought to be held liable was a ‘substantial factor’ in causing the harm.” Id. at 670." }, { "docid": "13943903", "title": "", "text": "the property, and this he may do by showing its loss and the manner of its loss; but by the manner of loss is meant, not only the isolated fact of destruction by fire, or loss by theft or otherwise, but the circumstances connected with the origin of the fire or other cause of loss or injury, as far as known to the bailee, and the precautions taken to prevent the loss or injury.” The District Judge found however that the Appellant “ * * * failed to prove his case by a preponderance of evidence * * * [and that] * * * [t]he testimony for plaintiff is no more creditable than the [Appellee] defendant’s.” Upon consideration of the appellate file and the applicable Kentucky law, which must be applied, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we are convinced that at the very least a bailment situation existed between the parties. Beardsley v. Broach, 310 S.W. 2d 539 (Ky.1958). The Appellant proved delivery of the auger and its destruction by fire while in Appellee’s exclusive care. Under Kentucky law this raised a prima facie case which shifts the burden of going forward with the evidence to Appellee. Threlkeod v. Breaux Ballard Inc., 296 Ky. 344, 177 S.W.2d 157 (1944). Where the burden is on the bailee to show that the damage or loss was not due to his negligence, it is incumbent upon the bailee to introduce substantive proof that the fire did not result from his negligence. Welch v. L. R. Cooke Chevrolet Co., 314 Ky. 634, 236 S.W.2d 690, 692 (1950). The trial Judge failed to make any findings concerning the bailment issue and consequently did not make any findings pertaining co the burden the bailee had to carry. The judgment is reversed and remanded for proceedings not inconsistent with this opinion. . From the wording of Appellant’s letters one can easily see tlie inconsistent positions taken: Xov. 12, 1962 — “I would suggest we try to handle this at $1,000.00 a month and in that way you" } ]

[ { "docid": "23611294", "title": "", "text": "Co. v. Coggeshall, 280 F.2d 654 (D.C.Cir.1960). See generally EPA v. Mink, 410 U.S. at 87-88, 93 S.Ct. at 836, 35 L.Ed.2d at 132. The privilege, therefore, only extends to documents which are a part of the deliberative process of government. The Commission’s disclosure rules are consistent with these principles. The EEOC Compliance Manual directs Commission employees to withhold those deliberative memoranda which contain staff impressions, evaluations, and recommendations related to the merits of a charge and proposed action by the Commission. To the extent that the documents withheld from Phillips by the Commission are internal working papers in which opinions are expressed, policies are formulated, and actions are recommended, they are privileged. To the extent that the documents contain purely factual material in a form that can be separated without compromising the privileged portions of the documents, the material is not privileged and is subject to discovery. Phillips also claims that the Commission has not properly invoked the privilege against disclosure of conciliation materials and intra-agency memoranda. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration of that officer. United States v. Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 532, 97 L.Ed. at 733. The purpose of this procedural requirement is to insure that subordinate officials do not lightly or mistakenly invoke the government’s privilege in circumstances not warranting its application. However, there has been sufficient compliance by the Commission to satisfy this goal. Ehrlich is director of the Commission’s Houston district office and custodian of the records subpoenaed by Phillips. She refused to disclose the subpoenaed materials only after consulting with the office of the General Counsel in accordance with EEOC regulations. See 29 C.F.R. §§ 1610.30-1610.36. Moreover, Ehrlich made the Commission’s objections to disclosure and its basis for them known to the court in written responses to questions accompanying the subpoena itself. Therefore, Phillips’ objection is without merit. Finally, there is one category of documents over which no dispute remains. When served with Phillips’ subpoena, the Commission also declined to" } ]

[ { "docid": "12925164", "title": "", "text": "150 (Temp.Em.Ct.App. 1981). Significantly, the Supreme Court’s Proposed Rule 509 allows assertion of the deliberative process privilege, as a “privilege for official information,” as low as the level of “any attorney representing the Government.” The rationale for delegation in Brett and Landry applies fully here. Insisting that the deliberative process privilege be asserted only by the Secretary of an agency after gaining “specific and detailed” knowledge of every document sought effectively would prevent the Government from ever invoking the privilege. Moreover, even if the Secretary were to attempt to acquire such detailed personal “knowledge,” it invariably would derive from briefings by the very officials given the delegations. Failing to permit invocation by the agency officials most familiar with the matter at hand, in fact, would conflict with another principle underlying the privilege— the need for actual, personal consideration by the invoker of the privilege. Landry, 204 F.3d at 1134-35. Therefore, the court concludes that the Secretary of Energy is not prohibited from delegating to Mr. Milner the power to invoke the deliberative process privilege. B. Invocation of the Privilege To be eligible for deliberative process protection, a policy-making document must be both pre-decisional and deliberative. In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir. 1997) (citations omitted). See also Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C.Cir.1975) (a document is part of the deliberative process if it makes recommendations or expresses opinions on legal or policy matters). Thus, the privilege does not apply to “communications made after the decision and designed to explain it,” Sears, Roebuck, 421 U.S. at 152, 95 S.Ct. 1504, or to factual material severable from the deliberative context, Environmental Protection Agency v. Mink, 410 U.S. 73, 87-88, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). Plaintiffs argue that documents later incorporated into an official agency decision are not privileged. See Coastal States Gas Corp. v. DOE, 617 F.2d 854, 866 (D.C.Cir. 1980) (a document can lose its pre-decisional status if adopted as the agency position). However, as the Supreme Court made clear in Sears, Roebuck, 421 U.S. at 159-162, 95 S.Ct. 1504, and Renegotiation Bd. v. Grumman" }, { "docid": "8064194", "title": "", "text": "at *5 (emphasis added); see also id. 207 Ct.Cl. 985, 1975 WL 6632 at *3 (“Defendant seeks to distinguish and does not assert the doctrine of executive privilege____”). Thus, Cetron Elec, did not decide anything relative to the dimensions of the executive privilege at issue in the present case. Hence, Cetron Elec, could not decide specific conditions for invocation of a privilege not invoked in that case. See Yankee Atomic Elec. Co. v. United States, 54 Fed.Cl. 806, 310 n. 4 (2002) (commenting that Cetron Elec.’s discussion of the executive privilege is merely dictum). Moreover, even if the general discussion in Cetron Elec, appears to apply to the deliberative process privilege generally, the Court of Claims did not confront or consider the propriety of a delegated invocation of the privilege. Nowhere does Ce-tron Elec, even discuss the Agency’s procedure of invocation of the privilege claim that was specifically not asserted in the case before this court’s predecessor. Thus, Cetron Elec, did not address or decide the issue before this court. For these reasons, the trial court’s reliance on Kaiser Aluminum and Cetron Elec, was misplaced. Neither Kaiser Aluminum nor Cetron Elec, rejected a delegated invocation of the deliberative process privilege. Thus, this court confronts for the first time the specific issue presented in this case. III. The “Agency head” requirement originated in the Supreme Court’s Reynolds opinion, which involved tort claims stemming from a late 1940s Air Force plane crash. 345 U.S. at 2-3, 73 S.Ct. 528. In Reynolds, the court upheld the Seere-tary of the Air Force’s refusal to turn over various military documents as privileged under the “military and state secrets privilege.” Id. at 7, 73 S.Ct. 528. Reynolds noted that the privilege was not to be lightly invoked and thus required a “formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” Id. at 7-8, 73 S.Ct. 528 (emphasis added). This passage in Reynolds gave rise to the “Agency head” invocation rule. Unlike Reynolds, however, the present case involves the deliberative process privilege," }, { "docid": "11918849", "title": "", "text": "the deliberative process privilege on the Agency’s behalf.” Marriott, 437 F.3d at 1308. While some courts have found that the deliberative process privilege may not be asserted by government counsel, Kaufman, 1999 WL 239698, at *4, *5, 1999 U.S. Dist. LEXIS 5779, at *10, *13 (“[S]ince defendants have merely asserted the privilege through counsel, the Court finds that defendants have failed to establish that the governmental deliberative process privilege exists with respect to the withheld documents.”); see also O’Neill, 619 F.2d at 226 (“It has been suggested that it is inappropriate for the privilege to be invoked by attorneys instead of by the department head.”), in the Federal Circuit, invocation of the privilege by government counsel has been found to be appropriate where the counsel holds “a senior position within the Agency and is responsible for planning, administering and evaluating the Agency’s disclosure policies and procedures.” Marriott, 437 F.3d at 1308. Notably, the counsel in Marriott was “not directly responsible for or involved in substantive tax litigation, including th[at] ease,” and was a “high ranking Agency official with expertise in the nature of the privilege claim and documents at issue.” Id. The Federal Circuit’s approach in Marriott is consistent with the rationale in other cases holding that counsel are not permitted to invoke the privilege, that is, to ensure that the privilege is invoked as a result of an executive decision about the exigencies of executive management, rather than as a result of trial counsel’s decision about a desirable litigation strategy. The invocation of the privilege in this case appears to the court to fall squarely within the Marriott ruling. Second, the party seeking protection “must state with particularity what information is subject to the privilege.” Walsky, 20 Cl.Ct. at 320 (citation omitted); see also PG & E II, 70 Fed.Cl. at 135 (citation omitted). In other words, “the information or documents sought to be shielded must be identified and described.” Reino de Espana, 2005 WL 1813017, at *12, 2005 U.S. Dist. LEXIS 15685, at *37 (quotation omitted). Third, “the agency must supply the court with ‘precise and certain reasons’" }, { "docid": "11918848", "title": "", "text": "at 496 (citing Redland Soccer Club v. Dep’t of the Army, 55 F.3d 827, 854 (3d Cir.1995)). The plaintiff may overcome the privilege by making “a showing of evidentiary need ... that outweighs the harm that disclosure of such information may cause to the defendant.” Alaska v. United States, 16 Cl.Ct. 5, 11 (1988) (citing CACI Field Servs., Inc. v. United States, 12 Cl.Ct. 680, 687 (1987)); see also Marriott, 437 F.3d at 1307 (“[A] showing of compelling need can overcome the qualified deliberative process privilege.”). To invoke the deliberative process privilege, “the party resisting discovery must meet several procedural requirements.” Reino De Espana, 2005 WL 1813017, at *12, 2005 U.S. Dist. LEXIS 15685, at *36. “First, the head of the agency that has control over the requested document must assert the privilege after personal consideration.” PG & E II, 70 Fed.Cl. at 134 (quoting Walsky, 20 Cl.Ct. at 320). Alternatively, and recently confirmed as an appropriate practice by the Federal Circuit, “the head of an Agency can, when carefully undertaken, delegate authority to invoke the deliberative process privilege on the Agency’s behalf.” Marriott, 437 F.3d at 1308. While some courts have found that the deliberative process privilege may not be asserted by government counsel, Kaufman, 1999 WL 239698, at *4, *5, 1999 U.S. Dist. LEXIS 5779, at *10, *13 (“[S]ince defendants have merely asserted the privilege through counsel, the Court finds that defendants have failed to establish that the governmental deliberative process privilege exists with respect to the withheld documents.”); see also O’Neill, 619 F.2d at 226 (“It has been suggested that it is inappropriate for the privilege to be invoked by attorneys instead of by the department head.”), in the Federal Circuit, invocation of the privilege by government counsel has been found to be appropriate where the counsel holds “a senior position within the Agency and is responsible for planning, administering and evaluating the Agency’s disclosure policies and procedures.” Marriott, 437 F.3d at 1308. Notably, the counsel in Marriott was “not directly responsible for or involved in substantive tax litigation, including th[at] ease,” and was a “high ranking" }, { "docid": "8064196", "title": "", "text": "not the military and state secrets privilege. On this point, our sister circuits have split over whether the Agency head invocation rule outlined in Reynolds applies to the deliberative process privilege as well as the military and state secrets privilege. See Dep’t of Energy v. Brett, 659 F.2d 154 (Temp.Emer.Ct.App.1981) (holding the trial court erred in ruling the deliberative process privilege could only be invoked by an Agency head) ; Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1135 (D.C.Cir.2000) (commenting that lesser officials can invoke the deliberative process and law enforcement privileges); Branch v. Phillips Petroleum Co., 638 F.2d 873, 882-83 (5th Cir.1981) (commenting that, while Reynolds indicates Agency head invocation is required, the Equal Employment Opportunities Commission (EEOC) sufficiently complied when the director of its Houston office, a subordinate, invoked the privilege on the EEOC’s behalf). Contra United States v. O’Neill, 619 F.2d 222, 225 (3d Cir.1980) (rejecting invocation of executive privilege by an attorney rather than the department head). For the following reasons, this court determines the majority rule, as explained by the United States Court of Appeals for the District of Columbia Circuit in Landry, applies in this circuit. In Landry, the Federal Deposit Insurance Corporation (FDIC) invoked the deliberative process privilege to justify withholding various documents sought in pretrial discovery. Landry, 204 F.3d at 1134. Notably, the head of the FDIC did not invoke the privilege; rather, the Memphis Regional Director of the FDIC invoked the privilege on the FDIC’s behalf. Id. In the DC Circuit’s eyes, delegated invocation in that case was entirely permissible because “[¡Insistence on an affidavit from the very pinnacle of agency authority would surely start to erode the substance of ‘actual personal’ involvement.” Id. This court agrees. Delegated review by a subordinate undoubtedly results in a more thorough, more consistent, and timelier review of potentially privileged documents than personal review by the Agency head. In the present case, for example, the 339 documents at issue came from a larger cache of more than 4,000 relevant pages of material. The subordinate, even though familiar with the documents and the nature" }, { "docid": "17660093", "title": "", "text": "and ordered enforcement counsel to produce the remaining 46 documents (seven had been produced to Landry for other reasons) for in camera inspection. After reviewing the newly submitted documents, the Board found most of them not to be privileged but did not order disclosure because it found the error harmless in light of the cumulative nature of the information withheld. See Order at 5-6, 51-52, J.A. at 223-24, 268-69. The FDIC Board did not address any of Landry’s claims under Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). Because the FDIC had not ruled on Landry’s Brady and Jencks claims for the documents that it did not review in camera, we ordered the FDIC to produce these documents so that we could decide whether material had been withheld improperly. Privilege. We begin with Landry’s challenges to the FDIC’s claims of privilege. His most substantial argument is that the deliberative process and law enforcement privileges were not properly invoked. Assertion of either of these qualified, common law executive privileges requires: (1) a formal claim of privilege by the “head of the department” having control over the requested information; (2) assertion of the privilege based on actual personal consideration by that official; and (3) a detailed specification of the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege. See In re Sealed Case, 856 F.2d 268, 271 (D.C.Cir.1988) (noting the requirements for invoking the law enforcement privilege); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C.Cir.1984) (same for deliberative process privilege). Landry’s argument is that assertion merely by the Memphis regional director of the FDIC’s division of supervision, Cottrell L. Webster, rather than by the head of the FDIC, is inadequate. The argument mistakenly assumes that only assertion by the head of the overall department or agency is enough. Our cases hold to the contrary. In Tuite v. Henry, 98 F.3d 1411 (D.C.Cir.1996), we allowed Counsel to the Justice Department’s Office of Professional Responsibility, rather than the Attorney General herself, to assert the" }, { "docid": "8914466", "title": "", "text": "the privilege was asserted by the Administrator of the General Services Administration. 141 Ct.Cl. 38, 157 F.Supp. 939. Since Cetron, this Court has regularly required that executive privilege be invoked only by the heads of agencies after personal familiarization with the documents involved and a determination that disclosure would significantly and adversely affect the agency’s vital functions. See, e.g., Vons, 51 Fed.Cl. at 23 (requiring submission of a formal invocation of the privilege by the Commissioner of the IRS); Abramson, 39 Fed.Cl. at 295 (upholding privilege); Walsky, 20 Cl.Ct. at 320 & n. 3 (rejecting assertion of privilege); Deuterium Corp. v. United States, 4 Cl.Ct. 361, 364 (1984) (government “properly invoked the executive privilege by submitting the affidavit of Acting Secretary [of Energy]”). Cetron is also consistent with a decision by a sister court in SCM Corp. v. United States, 82 Cust.Ct. 351, 473 F.Supp. 791, 797 (Cust.Ct.1979). The Federal Circuit itself has not directly-addressed the issue of whether the head of an agency may delegate the authority to invoke the privilege. The government argues that this Court should follow the ruling of the Temporary Emergency Court of Appeals (“TECA”) in Department of Energy v. Brett, 659 F.2d 154 (Temp.Emer.Ct.App.1981). Def.’s Opp’n at 19-21. In Brett, TECA held that a district court had erred in ruling that the deliberative-process privilege could only be invoked by the head of the agency. In- reaching this conclusion, TECA drew upon the D.C. Circuit’s ruling in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), an important decision for interpretation and application of the Freedom of Information Act, 5 U.S.C. § 552. Congress abolished TECA in 1992 and transferred its caseload to the Federal Circuit. See Federal Courts Administration Act of 1992, Pub.L. No. 102-572, Sec. 102(d), (e) 106 Stat. 4506, 4507 (codified in relevant part at 28 U.S.C. § 1295 note). For cases so transferred, the Federal Circuit directly adopted as precedents the decisions of TECA. See Texas Am. Oil Corp. v. Department of Energy, 44 F.3d 1557, 1561 (Fed.Cir.1995) (en banc). The government argues that all of TECA’s precedent should thus be considered binding" }, { "docid": "8064197", "title": "", "text": "by the United States Court of Appeals for the District of Columbia Circuit in Landry, applies in this circuit. In Landry, the Federal Deposit Insurance Corporation (FDIC) invoked the deliberative process privilege to justify withholding various documents sought in pretrial discovery. Landry, 204 F.3d at 1134. Notably, the head of the FDIC did not invoke the privilege; rather, the Memphis Regional Director of the FDIC invoked the privilege on the FDIC’s behalf. Id. In the DC Circuit’s eyes, delegated invocation in that case was entirely permissible because “[¡Insistence on an affidavit from the very pinnacle of agency authority would surely start to erode the substance of ‘actual personal’ involvement.” Id. This court agrees. Delegated review by a subordinate undoubtedly results in a more thorough, more consistent, and timelier review of potentially privileged documents than personal review by the Agency head. In the present case, for example, the 339 documents at issue came from a larger cache of more than 4,000 relevant pages of material. The subordinate, even though familiar with the documents and the nature of the privilege, still consumed over thirty-one hours in review of these records. Even if the Commissioner — undoubtedly less familiar with the nature of the documents at issue and less practiced at large-scale document review — could review documents as efficiently as the subordinate, the burden of personal review of each and every document in each and every case the IRS is involved in could interfere with the Commissioner’s overall responsibilities. See Martin v. Albany Bus. Journal, Inc., 780 F.Supp. 927 (N.D.N.Y.1983) (commenting that requiring personal review by an Agency head would bring the government to a virtual standstill). Faced with that difficult assignment, the Commissioner would likely either conduct a superficial document review to complete the process in a timely manner or conduct a detailed review over a long and drawn out period (avoiding conflicts with other responsibilities), thereby significantly extending litiga-tions. Thus, Landry correctly noted that delegation promotes both efficiency in judicial administration and actual personal involvement in the complex process of invoking the privilege. See Landry, 204 F.3d at 1134. Moreover," }, { "docid": "12925162", "title": "", "text": "reasons for asserting the privilege as to each document. The deliberative process privilege, sometimes confused with executive privilege, applies to “documents ‘reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (emphasis added) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966)). (This statement by the Supreme Court should lay to rest plaintiffs’ argument that merely “reflecting” agency deliberations, etc., does away with the privilege.) A. Delegation Under 42 U.S.C. § 7252, the Secretary of Energy is permitted to delegate his authority unless otherwise prohibited by law. Although some courts have required that the deliberative process privilege be invoked by the head of the agency himself, after personal consideration, see United States v. O’Neill, 619 F.2d 222, 225 (3d Cir. 1980), so high a level of authorization has not been required in this circuit. On the contrary, Department of Energy v. Brett, 659 F.2d 154, 155 (Temp.Em.Ct.App.1981), held that the deliberative process privilege need not be asserted by the head of an agency or even a senior official, but may be “raised by individuals with specific and detailed knowledge of the documents in which the privilege is asserted”. Several other jurisdictions also allow delegation. See Landry v. Federal Deposit Insurance Corp., 204 F.3d 1125 (D.C.Cir.2000) (affidavit from the head of a regional division sufficient to invoke the deliberative process privilege); Branch v. Phillips Petroleum Co., 638 F.2d 873, 882-83 (5th Cir.1981) (same); Kerr v. United States Dist. Ct. for North. Dist. of Cal., 511 F.2d 192, 198 (9th Cir.1975) (privilege generally available but not in that case because not invoked by any official of the agency); Grossman v. Schwarz, 125 F.R.D. 376, 381 (S.D.N.Y.1989) (governmental privilege may be invoked by an agency official other than the department head); Mobil Oil Corp. v. DOE, 520 F.Supp. 414, 418 (N.D.N.Y.1981) (allowing delegation as long as the delegatee can render “reasoned judgment” on the privilege), rev’d on other grounds, 659 F.2d" }, { "docid": "17660094", "title": "", "text": "(1) a formal claim of privilege by the “head of the department” having control over the requested information; (2) assertion of the privilege based on actual personal consideration by that official; and (3) a detailed specification of the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege. See In re Sealed Case, 856 F.2d 268, 271 (D.C.Cir.1988) (noting the requirements for invoking the law enforcement privilege); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C.Cir.1984) (same for deliberative process privilege). Landry’s argument is that assertion merely by the Memphis regional director of the FDIC’s division of supervision, Cottrell L. Webster, rather than by the head of the FDIC, is inadequate. The argument mistakenly assumes that only assertion by the head of the overall department or agency is enough. Our cases hold to the contrary. In Tuite v. Henry, 98 F.3d 1411 (D.C.Cir.1996), we allowed Counsel to the Justice Department’s Office of Professional Responsibility, rather than the Attorney General herself, to assert the law enforcement privilege for information obtained during investigations of potentially illegal Justice Department recordings of conversations between a defendant and his lawyer. See id. at 1417. Similarly, in Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336 (D.C.Cir.1984), in rejecting enforcement counsel’s assertion of the law enforcement privilege, we implied that officials other than the head of the department could assert the privilege, stating: “the files had not been examined for this purpose by responsible members or officers of CFTC.” Id. at 1342 (emphasis added); see also Kerr v. United States Dist. Ct. for North. Dist. of Cal., 511 F.2d 192, 198 (9th Cir.1975) (finding common law executive privilege inapplicable because “[n]either the Chairman of the [California Adult] Authority nor the Director of Corrections nor any official of these agencies asserted, in person or writing, any privilege in the district court” (emphasis added)), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). District courts in this Circuit have also allowed lesser officials to assert these privileges. See, e.g., Koehler v. United States," }, { "docid": "17660097", "title": "", "text": "official claims of privilege by department heads are often made after perfunctory review of subordinates’ decisions). Further, both privileges advance important goals; the gains from imposing demands in the interest of careful assertion must be balanced against the losses that would result of imposing superstringent procedures. See United States Dep’t of Energy v. Brett, 659 F.2d 154, 155-56 (Temp. Emer. Ct.App. 1981). Under our cases, the head of the appropriate regional division of the FDIC’s supervisory personnel is of sufficient rank to achieve the necessary deliberateness in assertion of the deliberative process and law enforcement privileges. We note that decisions involving the more sensitive and absolute privilege for state and military secrets have been more insistent on assertion at the highest level. See, e.g., United States v. Reynolds, 345 U.S. 1, 7-8 n. 20, 73 S.Ct. 528, 97 L.Ed. 727 (1953) (quoting Duncan v. Cammell, Laird & Co., [1942] A.C. 624, for the proposition that the decision to invoke the state secrets privilege should be taken by “the minister who is the political head of the department”); Clift v. United States, 597 F.2d 826, 829 (2d Cir.1979) (declining to require disclosure where the Secretary of Defense did not invoke the privilege because of a statute criminalizing such disclosure but noting “the Government would be wiser not to put courts to this test in the future”); Kinoy v. Mitchell, 67 F.R.D. 1, 9-10 (S.D.N.Y.1975) (requiring Attorney General himself to lodge a formally sufficient claim of privilege); 26 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5670 (1992). We express no opinion on who may assert that privilege. Landry’s claim that the FDIC fell fatally short by not including the disputed documents in the record is meritless. See Vaughn v. Rosen, 484 F.2d 820, 825-26 (D.C.Cir.1973) (noting the immense and unjustifiable cost to the appellate courts- of mandatory review of documents for privileged material). But see Kerr v. United States Dist. Ct. for North. Dist. of Cal., 426 U.S. 394, 405-06, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (noting that in camera review may be used to" }, { "docid": "8064199", "title": "", "text": "significant differences between the deliberative process privilege and other privileges (e.g., the military and state secrets privilege) justify delegated invocation in this case. Of most importance, the state secrets privilege is an absolute privilege; the deliberative process privilege is not. Thus, in a case with the state secrets branch of the executive privilege, even the most compelling need for the withheld documents cannot overcome the claim of privilege. See Reynolds, 345 U.S. at 11, 73 S.Ct. 528; Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir.1982), Moreover, in such a ease, a court generally may not conduct in-camera review of the highly sensitive withheld documents. See Reynolds, 345 U.S. at 10, 73 S.Ct. 528. Thus, a trial court enjoys little oversight of the Government’s invocation of a privilege involving military and state secrets. In contrast, a showing of compelling need can overcome the qualified deliberative process privilege. See e.g., In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997). Moreover, a trial court may conduct in-camera review of documents under this qualified branch of the executive privilege doctrine. The qualified deliberative process privilege is subject to judicial oversight. These differences, among others, support a reasonable delegation procedure for invocation of the deliberative process privilege. Hence, for these reasons, this court concludes that the head of an Agency can, when carefully undertaken, delegate authority to invoke the deliberative process privilege on the Agency’s behalf. This case provides an excellent example of the Agency’s care in the delegation process. Given the large number of documents implicated by Marriott’s request, the Commissioner issued Delegation Order No. 220 (Rev.3), expressly excluding from its scope the authority to claim the state secrets privilege and establishing detailed criteria for claiming the deliberative process privilege: Executive privilege may be claimed only for those internal or inter-agency records or information that are predecisional and deliberative, the disclosure of which would significantly impede or nullify Internal Revenue Service actions in carrying out a responsibility or function or would constitute an unwarranted invasion of personal privacy. Delegation Order No. 220 (Rev.3), 1997 WL 33479282. In addition, the subordinate selected by the Commissioner," }, { "docid": "8914481", "title": "", "text": "privilege); Landry v. Federal Deposit Ins. Corp., 204 F.3d 1125, 1135— 36 (D.C.Cir.2000) (discussing the deliberative-process and law-enforcement privileges and noting that \"District courts in this Circuit have also allowed lesser officials to assert these privileges”). Following the lead of the D.C. Circuit, delegation has been allowed by trial courts in the Second Circuit, see Martin v. Albany Bus. Journal, Inc., 780 F.Supp. 927 (N.D.N.Y.1992), in the Seventh Circuit, see Moorhead v. Lane, 125 F.R.D. 680 (C.D.Ill.1989), and in the Ninth Circuit, see Sanchez v. Johnson, 2001 WL 1870308 at *5 (N.D.Cal. Nov.19, 2001) (\"[Tlhe duty to invoke the privilege cannot be delegated so far down the chain of command that purposes of the requirement [for an agency head’s involvement] are undermined.”). See also Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 43-44 (N.D.Tex.1981) (allowing delegation with \"case-specific content guidelines which will insure appropriate and consistent invocation of the privilege by the agency” in accord with precedent from the Temporary Emergency Court of Appeals). . The deliberative-process privilege is not absolute and may be overcome by a showing by Marriott that it has a compelling need for the withheld material. Sun Oil Co. v. United States, 206 Ct.Cl. 742, 514 F.2d 1020, 1024 (1975); Walsky, 20 Cl.Ct. at 320. If Marriott contests any assertion the government might make of the privilege, Marriott should make a definite showing of facts indicating reasonable cause for judicial examination of the contested materials. Kaiser Aluminum, 157 F.Supp. at 947. . The descriptions provided in Ms. Stevens's Declaration include a number of documents for which the government appears to have alternative bases for withholding them from production. Most of these are related to the IRS’s treatment of third parties’ tax returns. See, e.g., Pls.’ App. Ex. D at 186 (Bates Nos. 9525-9535), 189 (Bates Nos. 9638-9640, 9641-9642). Within the descriptions for these documents, Ms. Stevens asserts that disclosure of third parties’ information is barred from disclosure by Internal Revenue Code § 6103. This basis for withholding information is not reflected on the government's privilege log and has not been addressed by the parties. Also," }, { "docid": "12925163", "title": "", "text": "F.2d 154, 155 (Temp.Em.Ct.App.1981), held that the deliberative process privilege need not be asserted by the head of an agency or even a senior official, but may be “raised by individuals with specific and detailed knowledge of the documents in which the privilege is asserted”. Several other jurisdictions also allow delegation. See Landry v. Federal Deposit Insurance Corp., 204 F.3d 1125 (D.C.Cir.2000) (affidavit from the head of a regional division sufficient to invoke the deliberative process privilege); Branch v. Phillips Petroleum Co., 638 F.2d 873, 882-83 (5th Cir.1981) (same); Kerr v. United States Dist. Ct. for North. Dist. of Cal., 511 F.2d 192, 198 (9th Cir.1975) (privilege generally available but not in that case because not invoked by any official of the agency); Grossman v. Schwarz, 125 F.R.D. 376, 381 (S.D.N.Y.1989) (governmental privilege may be invoked by an agency official other than the department head); Mobil Oil Corp. v. DOE, 520 F.Supp. 414, 418 (N.D.N.Y.1981) (allowing delegation as long as the delegatee can render “reasoned judgment” on the privilege), rev’d on other grounds, 659 F.2d 150 (Temp.Em.Ct.App. 1981). Significantly, the Supreme Court’s Proposed Rule 509 allows assertion of the deliberative process privilege, as a “privilege for official information,” as low as the level of “any attorney representing the Government.” The rationale for delegation in Brett and Landry applies fully here. Insisting that the deliberative process privilege be asserted only by the Secretary of an agency after gaining “specific and detailed” knowledge of every document sought effectively would prevent the Government from ever invoking the privilege. Moreover, even if the Secretary were to attempt to acquire such detailed personal “knowledge,” it invariably would derive from briefings by the very officials given the delegations. Failing to permit invocation by the agency officials most familiar with the matter at hand, in fact, would conflict with another principle underlying the privilege— the need for actual, personal consideration by the invoker of the privilege. Landry, 204 F.3d at 1134-35. Therefore, the court concludes that the Secretary of Energy is not prohibited from delegating to Mr. Milner the power to invoke the deliberative process privilege. B." }, { "docid": "8914479", "title": "", "text": "(2000 amend.)). . See United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 220, 121 S.Ct 1433, 149 L.Ed.2d 401 (2001) (“substantial judicial deference” accorded to the IRS’s reasonable \"longstanding interpretations of its own regulations”). Compare American Express Co. v. United States, 262 F.3d 1376, 1382 (Fed.Cir.2001) (applying deference), with Florida Power & Light Co. v. United States, 375 F.3d 1119 (Fed.Cir.2004) (deference not due). . In addition to these procedural requirements, a proper invocation of executive privilege will apply substantively only to \"pre-decisional” materials that are “deliberative in nature, containing opinions, recommendations, or advice pertaining to agency decisions.\" Abramson v. United States, 39 Fed.Cl. 290, 294-95 (1997). . There is a conflict on this issue among the various federal courts. The Federal Circuit, based on its precedent inherited from the Court of Claims, adheres to the requirement of person al invocation of executive privilege by the head of the agency, established by the Supreme Court in United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953). This requirement has likewise been adopted by the Third Circuit, see United States v. O'Neill, 619 F.2d 222 (3d Cir.1980), and has been followed by trial courts in that circuit. See Scott Paper Co. v. United States, 943 F.Supp. 501 (E.D.Pa.1996). Trial courts in the First Circuit, United States v. Salemme, 1997 WL 810057 (D.Mass. Dec.29, 1997), and in the Eighth Circuit, Nelson v. Production Credit Ass'n of the Midlands, 131 F.R.D. 161 (D.Neb.1989), have adopted the same view. Other federal courts, however, have elided the requirement for action by the head of the agency and allow the invocation of the deliberative-process doctrine by lower-level officials. For example, the D.C. Circuit allows agency heads to delegate their authority to invoke the \"deliberative process privilege” (which is treated by the D.C. Circuit as a discrete privilege rather than part of an overarching \"executive privilege”) in the context of requests made pursuant to the Freedom of Information Act (\"FOIA”), 5 U.S.C. § 552. See Judicial Watch, 365 F.3d at 1121 (citing cases in which a \"Pardon Attorney\" invoked deliberative-process" }, { "docid": "8914480", "title": "", "text": "has likewise been adopted by the Third Circuit, see United States v. O'Neill, 619 F.2d 222 (3d Cir.1980), and has been followed by trial courts in that circuit. See Scott Paper Co. v. United States, 943 F.Supp. 501 (E.D.Pa.1996). Trial courts in the First Circuit, United States v. Salemme, 1997 WL 810057 (D.Mass. Dec.29, 1997), and in the Eighth Circuit, Nelson v. Production Credit Ass'n of the Midlands, 131 F.R.D. 161 (D.Neb.1989), have adopted the same view. Other federal courts, however, have elided the requirement for action by the head of the agency and allow the invocation of the deliberative-process doctrine by lower-level officials. For example, the D.C. Circuit allows agency heads to delegate their authority to invoke the \"deliberative process privilege” (which is treated by the D.C. Circuit as a discrete privilege rather than part of an overarching \"executive privilege”) in the context of requests made pursuant to the Freedom of Information Act (\"FOIA”), 5 U.S.C. § 552. See Judicial Watch, 365 F.3d at 1121 (citing cases in which a \"Pardon Attorney\" invoked deliberative-process privilege); Landry v. Federal Deposit Ins. Corp., 204 F.3d 1125, 1135— 36 (D.C.Cir.2000) (discussing the deliberative-process and law-enforcement privileges and noting that \"District courts in this Circuit have also allowed lesser officials to assert these privileges”). Following the lead of the D.C. Circuit, delegation has been allowed by trial courts in the Second Circuit, see Martin v. Albany Bus. Journal, Inc., 780 F.Supp. 927 (N.D.N.Y.1992), in the Seventh Circuit, see Moorhead v. Lane, 125 F.R.D. 680 (C.D.Ill.1989), and in the Ninth Circuit, see Sanchez v. Johnson, 2001 WL 1870308 at *5 (N.D.Cal. Nov.19, 2001) (\"[Tlhe duty to invoke the privilege cannot be delegated so far down the chain of command that purposes of the requirement [for an agency head’s involvement] are undermined.”). See also Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 43-44 (N.D.Tex.1981) (allowing delegation with \"case-specific content guidelines which will insure appropriate and consistent invocation of the privilege by the agency” in accord with precedent from the Temporary Emergency Court of Appeals). . The deliberative-process privilege is not absolute and may be" }, { "docid": "8064195", "title": "", "text": "court’s reliance on Kaiser Aluminum and Cetron Elec, was misplaced. Neither Kaiser Aluminum nor Cetron Elec, rejected a delegated invocation of the deliberative process privilege. Thus, this court confronts for the first time the specific issue presented in this case. III. The “Agency head” requirement originated in the Supreme Court’s Reynolds opinion, which involved tort claims stemming from a late 1940s Air Force plane crash. 345 U.S. at 2-3, 73 S.Ct. 528. In Reynolds, the court upheld the Seere-tary of the Air Force’s refusal to turn over various military documents as privileged under the “military and state secrets privilege.” Id. at 7, 73 S.Ct. 528. Reynolds noted that the privilege was not to be lightly invoked and thus required a “formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” Id. at 7-8, 73 S.Ct. 528 (emphasis added). This passage in Reynolds gave rise to the “Agency head” invocation rule. Unlike Reynolds, however, the present case involves the deliberative process privilege, not the military and state secrets privilege. On this point, our sister circuits have split over whether the Agency head invocation rule outlined in Reynolds applies to the deliberative process privilege as well as the military and state secrets privilege. See Dep’t of Energy v. Brett, 659 F.2d 154 (Temp.Emer.Ct.App.1981) (holding the trial court erred in ruling the deliberative process privilege could only be invoked by an Agency head) ; Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1135 (D.C.Cir.2000) (commenting that lesser officials can invoke the deliberative process and law enforcement privileges); Branch v. Phillips Petroleum Co., 638 F.2d 873, 882-83 (5th Cir.1981) (commenting that, while Reynolds indicates Agency head invocation is required, the Equal Employment Opportunities Commission (EEOC) sufficiently complied when the director of its Houston office, a subordinate, invoked the privilege on the EEOC’s behalf). Contra United States v. O’Neill, 619 F.2d 222, 225 (3d Cir.1980) (rejecting invocation of executive privilege by an attorney rather than the department head). For the following reasons, this court determines the majority rule, as explained" }, { "docid": "8064198", "title": "", "text": "of the privilege, still consumed over thirty-one hours in review of these records. Even if the Commissioner — undoubtedly less familiar with the nature of the documents at issue and less practiced at large-scale document review — could review documents as efficiently as the subordinate, the burden of personal review of each and every document in each and every case the IRS is involved in could interfere with the Commissioner’s overall responsibilities. See Martin v. Albany Bus. Journal, Inc., 780 F.Supp. 927 (N.D.N.Y.1983) (commenting that requiring personal review by an Agency head would bring the government to a virtual standstill). Faced with that difficult assignment, the Commissioner would likely either conduct a superficial document review to complete the process in a timely manner or conduct a detailed review over a long and drawn out period (avoiding conflicts with other responsibilities), thereby significantly extending litiga-tions. Thus, Landry correctly noted that delegation promotes both efficiency in judicial administration and actual personal involvement in the complex process of invoking the privilege. See Landry, 204 F.3d at 1134. Moreover, significant differences between the deliberative process privilege and other privileges (e.g., the military and state secrets privilege) justify delegated invocation in this case. Of most importance, the state secrets privilege is an absolute privilege; the deliberative process privilege is not. Thus, in a case with the state secrets branch of the executive privilege, even the most compelling need for the withheld documents cannot overcome the claim of privilege. See Reynolds, 345 U.S. at 11, 73 S.Ct. 528; Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir.1982), Moreover, in such a ease, a court generally may not conduct in-camera review of the highly sensitive withheld documents. See Reynolds, 345 U.S. at 10, 73 S.Ct. 528. Thus, a trial court enjoys little oversight of the Government’s invocation of a privilege involving military and state secrets. In contrast, a showing of compelling need can overcome the qualified deliberative process privilege. See e.g., In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997). Moreover, a trial court may conduct in-camera review of documents under this qualified branch of the executive privilege" }, { "docid": "8064200", "title": "", "text": "doctrine. The qualified deliberative process privilege is subject to judicial oversight. These differences, among others, support a reasonable delegation procedure for invocation of the deliberative process privilege. Hence, for these reasons, this court concludes that the head of an Agency can, when carefully undertaken, delegate authority to invoke the deliberative process privilege on the Agency’s behalf. This case provides an excellent example of the Agency’s care in the delegation process. Given the large number of documents implicated by Marriott’s request, the Commissioner issued Delegation Order No. 220 (Rev.3), expressly excluding from its scope the authority to claim the state secrets privilege and establishing detailed criteria for claiming the deliberative process privilege: Executive privilege may be claimed only for those internal or inter-agency records or information that are predecisional and deliberative, the disclosure of which would significantly impede or nullify Internal Revenue Service actions in carrying out a responsibility or function or would constitute an unwarranted invasion of personal privacy. Delegation Order No. 220 (Rev.3), 1997 WL 33479282. In addition, the subordinate selected by the Commissioner, an Assistant Chief Counsel, holds a senior position within the Agency and is responsible for planning, administering and evaluating the Agency’s disclosure policies and procedures. Notably, this subordinate is not directly responsible for or involved in substantive tax litigation, including this case. Thus, the Commissioner, in his delegation, provided detailed criteria for invoking the privilege. Moreover he chose a high ranking Agency official with expertise in the nature of the privilege claim and documents at issue. This delegation by the Commissioner was entirely proper and consistent with the majority rule outlined in Landry. Because the trial court erroneously rejected the deliberative process privilege, this court reverses. IV. In sum, this court commends the trial court’s caution in carefully consulting this court’s precedents, namely, Cetron Elec. and Kaiser Aluminum. In this case, however, the trial court’s reliance on those inapposite cases was misplaced. These cases did not rule on the propriety of a delegated invocation of the deliberative process privilege. For the reasons stated, this court concludes an Agency head may delegate the authority to invoke" }, { "docid": "8064201", "title": "", "text": "an Assistant Chief Counsel, holds a senior position within the Agency and is responsible for planning, administering and evaluating the Agency’s disclosure policies and procedures. Notably, this subordinate is not directly responsible for or involved in substantive tax litigation, including this case. Thus, the Commissioner, in his delegation, provided detailed criteria for invoking the privilege. Moreover he chose a high ranking Agency official with expertise in the nature of the privilege claim and documents at issue. This delegation by the Commissioner was entirely proper and consistent with the majority rule outlined in Landry. Because the trial court erroneously rejected the deliberative process privilege, this court reverses. IV. In sum, this court commends the trial court’s caution in carefully consulting this court’s precedents, namely, Cetron Elec. and Kaiser Aluminum. In this case, however, the trial court’s reliance on those inapposite cases was misplaced. These cases did not rule on the propriety of a delegated invocation of the deliberative process privilege. For the reasons stated, this court concludes an Agency head may delegate the authority to invoke the deliberative process privilege on the Agency’s behalf. The decision of the trial court is reversed and the case remanded for further proceedings consistent with this opinion. COSTS Each party shall bear its own costs. REVERSED and REMANDED . Notably, Kaiser Aluminum was authored by retired United States Supreme Court Justice Stanley Reed sitting by designation. . The court specifically noted only two legal issues in the case: \"First, does the United States possess a privilege to produce a document that contains opinions rendered the Liquidator by a member of his staff concerning a sale.” Kaiser Aluminum & Chem. Corp. v. United. States, 141 Ct.Cl. 38, 157 F.Supp. 939, 944 (1958). And \"[sjecond, can a head of an agency of the Government determine the privilege for himself?” Id. at 944 n. 5. . The deliberative process privilege is but one of several privileges that generally fall within the scope of the more general \"executive privilege.” While the presidential communications privilege and the deliberative process privilege are closely affiliated, the two privileges are distinct and have" } ]

[ { "docid": "22108337", "title": "", "text": "325 F.3d 609, 615—18 (5th Cir.2003), we reject this reasoning, as have three other circuits. See A.W., 341 F.3d at 250-54; Doe v. Nebraska, 345 F.3d 593, 601-04 (8th Cir.2003); Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292-93 (11th Cir.2003) (per curiam). IV. We affirm the grant of the preliminary injunction and the denial of Eleventh Amendment immunity on grounds of waiver under § 504. We remand the case with instructions to stay the claims under Title II of the ADA, and for further proceedings consistent with this opinion. Costs are awarded to the plaintiffs. . Under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the defendant state officers were proper defendants for prospective injunctive relief, but the Commonwealth or the Department qua Department were not. Id. at 155-56, 159-60, 28 S.Ct. 441. The defendants have failed to brief those distinctions at all. Since certain defendants are proper parties, we do nothing further with the issue. .At oral argument, the defendants stated that the plaintiffs would not be without a remedy because they could seek a writ of mandamus from the state court to enforce the administrative order. This is a concession that the order had continuing effect in these circumstances. Moreover, IDEA expressly allows plaintiffs to seek relief in a federal forum. See 20 U.S.C. § 1415(i)(2)(A) (\"[Ajction may be brought in any State court of competent jurisdiction or in a district court of the United States ....”). And it is far from clear from the defendants’ summary presentation, without briefing, that mandamus would be available in the Puerto Rico courts. . The lack of a clause in IDEA that specifically provides for judicial enforcement of administrative orders supports rather than undercuts our analysis. The lack of an enforcement clause shows Congress's intent to reinforce the administrative scheme and the requirement that administrative remedies be exhausted. Our result also reinforces that scheme. . We leave open the question whether a cause of action could also be implied under 42 U.S.C. § 1983. The Supreme Court held that IDEA's" } ]

[ { "docid": "23314031", "title": "", "text": "within our bailiwick. As such, the court did not err in dismissing the State Claim. C. Finally, we turn to the Plaintiffs’ claims against the DENR Defendants, which the district court dismissed upon concluding that they were entitled to sovereign immunity under the Eleventh Amendment. In so ruling, the court rejected the Plaintiffs’ contention that the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), provided an exception to sovereign immunity in this case. Dismissal Order at 10. It is established that sovereign immunity protects a state from being sued by one of its own citizens without its consent. Alden v. Maine, 527 U.S. 706, 727-28, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). The long-standing doctrine of Ex parte Young, however, “allows private citizens, in proper cases, to petition a federal court to enjoin State officials in their official capacities from engaging in future conduct that would violate the Constitution or a federal statute.” Antrican v. Odom, 290 F.3d 178, 184 (4th Cir.2002). Specifically, Ex parte Young authorizes “suits against state officers for prospective equitable relief from ongoing violations of federal law.” Lytle v. Griffith, 240 F.3d 404, 408 (4th Cir.2001). To determine whether the Ex parte Young doctrine is applicable, as the Supreme Court recently observed, a court “need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 122 S.Ct. 1753, 1760, 152 L.Ed.2d 871 (2002) (internal quotation and citation omitted). In their First Amended Complaint, the Plaintiffs repeatedly request injunctive relief against the DENR Defendants. They specifically seek, for example, “declaratory and injunctive relief against the North Carolina Department of Environment and Natural Resources and the Wake County Board of Commissioners.” Further, they request that the court “[e]njoin Defendants from constructing, operating and/or maintaining the South Wake Landfill on the site which is the subject of this lawsuit.” The court concluded, however, that these allegations fail to satisfy Ex parte Young because, when the Plaintiffs filed" }, { "docid": "1386242", "title": "", "text": "the State may be sued for prospective injunctive relief under federal law. This court agrees with Maizner on this point. The Eleventh Amendment to the United States Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Pursuant to the Eleventh Amendment, states cannot be sued in federal court by their own citizens or citizens of another state. Papasan v. Allain, 478 U.S. 265, 275, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Eleventh Amendment also bars federal court actions against state agencies or instrumentalities. Shaw v. State of Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986). Unless a state unequivocally waives its sovereign immunity or Congress properly exercises its power to override that immunity, the state and its agencies are immune from suit under the Eleventh Amendment. See Bd. of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); In re Pegasus Gold Corp., 394 F.3d 1189, 1195 (9th Cir. 2005). Where immunity has not been waived or overridden, the Eleventh Amendment immunizes states and state agencies from claims seeking retrospective relief. See Ulaleo v. Paty, 902 F.2d 1395, 1398 (9th Cir.1990) (“The eleventh amendment bars citizen suits against states, institutional arms of the state, and state officials in their official capacity when the relief sought is retrospective in nature, i.e. damages.” (citations omitted)). However, the Eleventh Amendment does not bar claims for prospective declaratory or injunctive relief against states or state agencies. Native Village of Noatak v. Blotch-ford, 38 F.3d 1505, 1511 (9th Cir.1994) (“The Eleventh Amendment does not prohibit a federal court from ordering prospective, as opposed to retroactive, relief.”) (citing Edelman, 415 U.S. at 664-67, 94 S.Ct. 1347); see also Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). With respect to claims based on state law, the Eleventh Amendment completely immunizes" }, { "docid": "13168553", "title": "", "text": "be free from governmental intrusion regarding ‘the most private human contact, sexual behavior.’ ” Id. at 744. Also, were Lawrence applicable, there is authority for Lowe’s position that a heightened standard, greater than a rational basis, may govern. Again, Lowe relies on Cook, where the First Circuit held that Lawrence “applies a standard of review that lies between strict scrutiny and rational basis” because it “balanced the strength of the state’s asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners’ private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied.” Cook, 528 F.3d at 56. In Witt v. Dep’t of the Air Force, 527 F.3d 806 (9th Cir.2008), the Ninth Circuit also considered the “Don’t Ask, Don’t Tell” policy post -Lawrence and concluded that the Lawrence Court must have applied something more stringent than rational basis review. It noted that the Supreme Court rejected Bowers not because the Bowers Court wrongly held that the statute at issue satisfied rational basis review, but because of “ ‘the Court’s own failure to appreciate the extent of the liberty at stake,’ ” id. at 813 (quoting Lawrence, 539 U.S. at 567, 123 S.Ct. 2472); that “the cases on which the Supreme Court explicitly based its decision in Lawrence are based on heightened scrutiny”; and that “[w]ere the Court applying rational basis review, it would not [have] identified] a legitimate state interest to ‘justify’ the particular intrusion of liberty at issue[,]” id. at 817. Other circuit courts, however, have concluded just the opposite. In Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir.2008), the Tenth Circuit considered a plaintiffs claim that her employer, LaVerkin City, Utah, and its agents, “violated her fundamental liberty interest to ‘engage in a private act of consensual sex.’ ” Id. at 770 (citation omitted). The court noted that “[b]roadly speaking, no one disputes a right to be free from government interference in matters of consensual sexual privacy. But as the case law teaches us, a plaintiff asserting a substantive due process right must both (1) carefully describe" }, { "docid": "15263649", "title": "", "text": "Appellees still could obtain injunctive relief against the Department’s English-only exam policy. Since Ex Parte Young, suits directed against state officials that seek prospective relief for continuing violations are not barred on Eleventh Amendment grounds. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). This doctrinal exception to state sovereign immunity is well-established. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (reaffirming that a plaintiff seeking prospective relief against a state official’s ongoing violation of federal law can proceed in federal court); Summit Medical Assoc, v. Pryor, 180 F.3d 1326, 1336-38 (11th Cir.1999) (same). The doctrine prohibits state officers from enforcing state policies in violation of the Constitution or federal law under a legal “fiction” that “creates an imaginary distinction between the state and its officers, deeming the officers to act without the state’s authority, and hence, without immunity protection, when they enforce state laws in derogation” of federal or constitutional rights. Id. at 1337. The applicability of the doctrine turns on three considerations; first, does the Plaintiff seek prospective or retrospective relief; second, is the violation ongoing and continuous; and finally, would equitable relief “ ‘implicate special sovereignty interests.’ ” Id. at 1337 (quoting Coeur d’Alene, 521 U.S. at 281, 117 S.Ct. 2028). Both parties agree that the first two considerations are easily satisfied. Appellees seek prospective relief in the form of a permanent injunction for alleged ongoing violations of Title VI. However, Appellants rely on Seminole Tribe in arguing that the suit implicates “special sovereignty interests” because Section 602 of Title VI evinces a congressional intent to avoid Ex Parte Young remedies. Id., 517 U.S. at 59, 116 S.Ct. 1114. We are not persuaded. First, we have concluded, infra, in Part IV, that a private cause of action is consonant with Section 602 of Title VI. The Supreme Court also has held that Title Vi’s statutory scheme is not inconsistent with a private right of action, see Cannon v. Univ. of Chicago, 441 U.S. 677, 704, 99 S.Ct. 1946, 60 L.Ed.2d 560" }, { "docid": "21615893", "title": "", "text": "any of the exceptions to sovereign immunity that would allow their suit. Westside Mothers, 133 F.Supp.2d at 559-60. As explained by the Supreme Court in many cases, sovereign immunity, though partially codified in the Eleventh Amendment, is a basic feature of our federal system. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). There are exceptions. Congress may abrogate a State’s immunity from suit under § 5 of the Fourteenth Amendment or a state may consent to suit. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). None of the exceptions that allow an individual to sue a state directly are at issue here, however. Though the record is not entirely clear, it appears that plaintiffs at first sued the named defendants under § 1983, and only when the district court expressed skepticism about this avenue of attack did they invoke Ex parte Young as an alternative mechanism to reach the defendants. See Westside Mothers, 133 F.Supp.2d at 575-76. Because sovereign immunity limits the jurisdiction of the Federal courts, we address it before turning to § 1983. Under the doctrine developed in Ex parte Young and its progeny, a suit that claims that a state official’s actions violate the constitution or federal law is not deemed a suit against the state, and so barred by sovereign immunity, so long as the state official is the named defendant and the relief sought is only equitable and prospective. See 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also, e.g., Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). “Since Ex parte Young ... it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.” Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citation omitted). Of course, Ex parte" }, { "docid": "398950", "title": "", "text": "novo as well. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir.2010) (citation omitted). On appeal, the Department and Little-ton argue that sovereign immunity requires that the self-care claims against both defendants be dismissed, and that qualified immunity bars many of the claims against Littleton. I. Sovereign immunity as to Bryant’s self-care claims Federal courts lack jurisdiction “over suits against a state, a state agency, or a state official in his official capacity unless that state has waived its sovereign immunity or Congress has clearly abrogated it.” Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir.2014) (citations omitted). Congress has validly abrogated states’ sovereign immunity with respect to the FMLA’s family-care provision. Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 735, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). It has not done so with respect to the statute’s self-care provision; thus states may still assert an Eleventh Amendment immunity defense against claims based on that provision. Nelson v. Univ. of Tex. at Dall., 535 F.3d 318, 321 (5th Cir.2008). Despite this caselaw, the district court determined that sovereign immunity did not bar the self-care claim when a plaintiff seeks “reinstatement, relief that escapes Eleventh Amendment preclusion.” On appeal, Bryant argues that her claim for reinstatement is an acceptable form of prospective relief against the state that is not barred by the Eleventh Amendment. We disagree, as the Ex parte Young exception on which Bryant relies does not apply to suits against state agencies; this narrow exception is limited to certain claims against state employees acting in their official capacities. See Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir.2013) (discussing Ex parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). Bryant’s self-care claims against the Department are barred by sovereign immunity under Nelson. When the Eleventh Amendment applies, courts lack subject-matter jurisdiction over the claim. United States v. Tex. Tech. Univ., 171 F.3d 279, 285 n. 9 (5th Cir.1999). Thus, the district court did not have jurisdiction over either Bryant’s interference or retaliation claims against the" }, { "docid": "6362112", "title": "", "text": "law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. “The reach of the Eleventh Amendment has been interpreted to extend beyond the terms of its text to bar suits in federal courts against states, by their own citizens or by foreign sovereigns.” State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d Cir.2007) (internal alterations and quotation marks omitted). Moreover, because state immunity extends to state officers who act on behalf of the state, see Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-47, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993), where the state is the “real, substantial party in interest,” the Eleventh Amendment generally bars federal court jurisdiction over actions against state officials acting in their official capacities, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). “Under the well-known exception to this rule first set forth in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), however, ‘a plaintiff may sue a state official acting in his official capacity — notwithstanding the Eleventh Amendment — for prospective, injunctive relief from violations of federal law.’ ” State Employees, 494 F.3d at 95 (quoting In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.2007)). “It is well settled that federal courts may not grant declaratory or injunctive relief against a state agency based on violations of state law.” Bad Frog Brewery, Inc. v. N. Y. State Liquor Auth., 134 F.3d 87, 93 (2d Cir.1998) (citing Pennhurst, 465 U.S. at 106, 104 S.Ct. 900); see also Young v. N.Y. City Transit Auth., 903 F.2d 146, 164 (2d Cir.1990). Indeed, “[t]here is no ‘greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.’ ” Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir.1996) (quoting Young, 903 F.2d at 164). Thus, in light of Pennhurst and its progeny," }, { "docid": "1560156", "title": "", "text": "S.Ct. at 911) (internal quotation marks omitted). Nor is Ex Parte Young, which permits claims for injunctive relief only against a State, applicable to state law claims. Holmes v. California Army Nat’l Guard, 920 F.Supp. 1510, 1520 (N.D.Cal.1996) (citation omitted), rev’d on other grounds, 124 F.3d 1126 (9th Cir.1997). Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs state law claims against SFUSD and the individual defendants in both capacities. III. INDIVIDUAL DEFENDANTS A OFFICIAL-CAPACITY DEFENDANTS MAY ASSERT ELEVENTH AMENDMENT IMMUNITY Defendants also seek to dismiss Plaintiffs claims for federal civil rights violations against the individual defendants, on the ground that the Eleventh Amendment immunizes officials of a State agency who act within the scope of their employment. While the Eleventh Amendment provides States and their instrumentalities with immunity from suit in federal court when the State has not consented to suit and Congress has not abrogated the States’ sovereign immunity, this immunity is not absolute. Beginning with Ex Parte Young in 1908, courts have recognized an exception where a suit for prospective relief is brought against an official of the State, in an official capacity. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984) (citing Edelman v. Jordan, 415 U.S. 651, 666-67, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974)); Bair v. Krug, 853 F.2d 672, 675 (9th Cir.1988) (“[T]he eleventh amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., money damages, rather than prospective, e.g., an injunction”). No other relief is available against the State. Discussing a section 1983 claim, the Court noted, “[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief ... and may not include a retroactive award which requires the payment of funds from the state treasury.” Quern v. Jordan, 440 U.S. 332, 338, 99 S.Ct. 1139, 1143-44, 59 L.Ed.2d 358 (1979)" }, { "docid": "259232", "title": "", "text": "Cir. 1981). The Tenth and Eleventh Circuits, while ultimately affirming the district courts’ decisions to abstain under Younger, also focused their analyses on whether the state proceeding offered an adequate forum for the plaintiffs to present their federal claims. See J.B. v. Valdez, 186 F.3d 1280 (10th Cir.1999); 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir.2003). Like the plaintiff class in LaShawn A, Plaintiffs here also bring a “multifaceted request for broad-based injunctive relief based on the Constitution and on federal ... statutory law.” 990 F.2d at 1323. Although Defendants maintain that Plaintiffs in theory can assert federal claims in state juvenile courts, they fail to explain how those courts present an adequate forum for Plaintiffs’ claims. In fact, Massachusetts juvenile courts are tasked with handling difficult questions of family law on an ad-hoc basis, not with crafting broad-based injunctive relief that could potentially revamp an executive agency. They cannot and do not afford Plaintiffs an adequate opportunity to seek relief for the systemic failures alleged in the complaint. Thus, abstention is inappropriate. C. Sovereign Immunity. Defendant Deval Patrick, as Governor of Massachusetts, argues that the doctrine of sovereign immunity precludes all claims against him. Specifically, Defendant Patrick asserts that Plaintiffs have failed to establish a sufficient connection between any actions taken by him and the harms alleged. The argument is unpersuasive. The Eleventh Amendment generally bars suits in federal court against unconsenting states. See Rosie D. ex rel. John D. v. Swift, 310 F.3d 230, 234 (1st Cir.2002). However, in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court recognized a narrow exception for claims seeking prospective injunctive relief against state actors. Ex Parte Young allows federal courts, “notwithstanding the absence of consent, waiver or evidence of congressional assertion of national hegemony, [to] enjoin state officials to conform future conduct to the requirements of federal law.” Rosie D., 310 F.3d at 234 (holding that Eleventh Amendment did not bar Medicaid beneficiaries from seeking prospective injunctive relief in federal court) (citations and quotation marks omitted). As long as the state official" }, { "docid": "21046515", "title": "", "text": "and quotation marks omitted). The district court found that all of the appellees were entitled to summary judgment on the basis of Eleventh Amendment sovereign immunity. The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” It has long been settled that the reference to actions against one of the United States encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instru-mentalities. Thus, when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997) (internal citations and some quotation marks omitted). The Eleventh Amendment bars the award of money damages against state officials in their official capacities. However, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), there is a limited exception to the general principle of sovereign immunity [that] allows a suit for injunctive relief challenging the constitutionality of a state official’s actions in enforcing state law under the theory that such a suit is not one against the State, and therefore not barred by the Eleventh Amendment. CSX Transp. v. N.Y. State Office of Real Prop. Servs., 306 F.3d 87, 98 (2d Cir.2002) (internal citations and quotation marks omitted). The appellants contend that this exception applies to their claims. “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 122" }, { "docid": "20780973", "title": "", "text": "v. S. Univ., 118 F.3d 450, 453 (5th Cir.1997) (“Louisiana has not waived its sovereign immunity for suits brought in federal court”), and Congress has not abrogated state sovereign immunity under the ADEA, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), nor under § 1983, see Quern v. Jordan, 440 U.S. 332, 339-340, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Richardson, 118 F.3d at 453. Raj’s only contention on appeal regarding .subject matter jurisdiction is to note, correctly, that the Eleventh Amendment does not bar suits for injunctive or declaratory relief against individual state officials acting in violation of federal law. See Ex parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908). To fall within the Ex parte Young exception to sovereign immunity, however, a plaintiff must name individual state officials as defendants in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 n. 18, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“In an injunctive or declaratory action grounded on federal law, the State’s immunity can be overcome by naming state officials as defendants.”). Although Raj has asserted claims for injunctive and declaratory relief, he cannot overcome sovereign immunity under Ex parte Young because he has named only LSU, LSU Health, and the LSU Board as defendants. Thus, Raj’s ADEA and § 1983 and § 1985 claims are barred if the LSU Board is “an arm of [the] State” and, therefore, an entity entitled to sovereign immunity. Richardson, 118 F.3d at 450 (holding that even when a plaintiff does not “name the State of Louisiana as a defendant ... [his] suit may nonetheless succumb to Eleventh Amendment immunity if the State is the real party in interest.”). For the same reasons we articulated with regard to Southern University and its Board in Richardson, 118 F.3d at 454-56, and the University of Southern Louisiana in Delahoussaye v. City of New Iberia, 937 F.2d 144, 147-48 (5th Cir.1991), we agree with the district court’s finding—which Raj fails to challenge on appeal—that the LSU Board is an" }, { "docid": "20382078", "title": "", "text": "conception of sovereign immunity. . See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (holding that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin a state official from enforcing state statute claimed to violate the Fourteenth Amendment of the United States Constitution). The Ex parte Young opinion was premised on the theory that since the state cannot authorize unconstitutional action, the officer is “stripped of his official or representative character and ... subjected in his person to the consequences of his individual conduct.” Pennhurst, 465 U.S. at 102, 104 S.Ct. 900 (quoting Ex parte Young, 209 U.S. at 160, 28 S.Ct. 441). The Ex parte Young doctrine has come to stand for an exception to Eleventh Amendment immunity in suits against state officials seeking prospective declaratory or injunctive relief under federal law. Id. . See generally Erwin Chemerinsky, Federal Jurisdiction § 7.5.2, at 430 (4th ed. 2003) (\"[T]he fact that a government officer is acting in the scope of official duties is not enough to bar a suit as being in ‘official capacity.’ ”); cf. Muirhead v. Mecham, 427 F.3d 14, 18 (1st Cir.2005) (\"[A] suit, although nominally aimed at an official, will be considered one against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.\" (internal quotation marks omitted)). . Defendants, separately, without elaboration, contend that the district court erred in basing its liability finding on the Equal Protection claims on two distinct theories: \"selective enforcement\" and \"discrimination in treatment against a class of one.” This argument fails for lack of developed argumentation. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). . The district court had excluded the evidence on grounds that it was not relevant and not timely produced." }, { "docid": "8564682", "title": "", "text": "types of exceptions to the Eleventh Amendment’s bar. See MCI Telecommunications Corp. v. Illinois Bell Telephone Co., 222 F.3d 323, 337 (7th Cir.2000). First, a state may waive immunity by consenting to suit in federal court. Second, Congress may abrogate the state’s immunity through a valid exercise of its powers under recognized constitutional authority, such as by later constitutional amendments. Third, under Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a plaintiff may file “suit[] against state officials seeking prospective equitable relief for ongoing violations of federal law....” Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir.1997). Ex parte Young began with a suit against state officials to enjoin enforcement of a state railroad commission’s order requiring rate reductions. Plaintiffs contended that the rate reductions would violate the United States Constitution. See 209 U.S. at 129— 30, 28 S.Ct. 441. The Supreme Court held that the Eleventh Amendment did not bar the plaintiffs suit, explaining that when a state official violates the federal Constitution, that official acts outside the scope of his or her authority and is no longer entitled to the state’s immunity from suit. Id. at 155-56, 28 S.Ct. 441. Ex parte Young applies to suits to enforce federal statutes as well as the federal Constitution. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n. 6, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978) (holding that Ex parte Young allowed suit in federal court against named state official for violating federal statute); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (Ex parte Young authorized suit against state officials challenging state statute as preempted by federal statute); MCI Telecommunications, 222 F.3d at 345 (applying Ex parte Young to suit against state officials under federal Telecommunications Act). IPAS argues that Ex parte Young authorizes this suit against state officials seeking prospective relief. We agree. A court applying the Ex parte Young doctrine now “need only conduct a ‘straightforward inquiry’ into whether [the] complaint alleges an ongoing violation of federal" }, { "docid": "15341645", "title": "", "text": "against unconsenting States was not contemplated by the Constitution when establishing the judicial power of the United States.” Id. (citations omitted). Therefore, a State is immune from suit by an individual. Id. There are exceptions to the sovereign immunity doctrine of the Eleventh Amendment. First, a state can expressly consent to suit. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Micomonaco v. State of Washington, 45 F.3d 316, 319 (9th Cir.1995). If it does, it can be sued in federal court. Second, where a state’s statutes or constitution so provide, a state will be deemed to have waived its sovereign immunity. Id. Third, Congress can expressly abrogates the states’ sovereign immunity pursuant to a valid exercise of power. Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114. Finally, and most relevant here, a plaintiff may seek prospective injunctive relief from a state, if necessary to conform its conduct with Federal statutes or the constitution, even if it has an ancillary effect on the state treasury. Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This is true when the relief is sought in the form of a declaratory judgment, id., or through an injunction forcing a state officer to conform his conduct with the law and to prevent interference with federal rights. Papasan v. Attain, 478 U.S. 265, 277, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (stating that injunction exception only applies where “underlying authorization upon which the named official acts is asserted to be illegal”); Ex Parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir.1997). Therefore, the Eleventh Amendment does not preclude suit against a state official for “prospective relief for an ongoing violation of federal law.” Children’s Hospital and Health Center v. Belshe, 188 F.3d 1090, 1095 (9th Cir.1999). The first question before the court, then, is whether, if taking the allegations in Plaintiffs’ Complaint as true, the actions of the state officials in this suit constitute ongoing violations of federal law. Plaintiffs assert" }, { "docid": "2861616", "title": "", "text": "deciding, we will assume that the Board is an agency of the State. The rule of sovereign immunity is subject to an exception of vast import: where a suit seeks relief against a state agency for action contrary “to the supreme authority of the United States”, it is not deemed a suit against the sovereign. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). This so-called “stripping doctrine” has been limited to suits for prospective injunctive relief; the federal courts have no jurisdiction to award retroactive monetary relief in such cases. Edel-man v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Pennhurst II the Supreme Court confronted another variation on the Ex parte Young theme — a pendent claim against state agencies and officers seeking prospective injunctive relief for a violation of state law. The Court held that such suits were barred by the eleventh amendment: In such a case the entire basis for the doctrine of Young and Edelman disappears. A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment. 465 U.S. at —, 104 S.Ct. at 911. In applying the doctrine of Pennhurst II to the present case, our recent decision in Everett v. Schramm, 772 F.2d 1114 (3d Cir.1985) is instructive. Everett involved a dispute between recipients of Aid to Families With Dependent Children (“AFDC”) and the State of Delaware over the proper “standard of need” to be used in certain AFDC calculations. The State was using a standard that, it was conceded, met the minimum requirements of federal law. The plaintiffs contended that state law established a much higher standard, and they sought an injunction that would require that the State use the" }, { "docid": "20002226", "title": "", "text": "dismiss Nelson’s claim against Daniel in his official capacity unless Nelson can demonstrate an exception to immunity. As noted above, Nelson relies on the exception to Eleventh Amendment immunity created by the Supreme Court in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Pursuant to the Ex parte Young exception, the Eleventh Amendment is not a bar to suits for prospective relief against a state employee acting in his official capacity. Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 482 (5th Cir.2008), petition for cert. filed, 76 U.S.L.W. 3611 (U.S. May 5, 2008) (No. 07-1387). Thus, “prospective injunctive or declaratory relief against a state [official] is permitted ... but retrospective relief in the form of a money judgment in compensation for past wrongs ... is barred.” Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir.1988). Nelson argues that his request for reinstatement is the sort of prospective relief that is permitted by the Ex parte Young doctrine. As shown by Nelson, this circuit has always treated Ex parte Young as an appropriate vehicle for pursuing reinstatement to a previous job position. In Warnock v. Pecos County, we considered a district court’s dismissal of a § 1983 action on the basis of Eleventh Amendment immunity. 88 F.3d 341 (5th Cir.1996). There, the plaintiff sought damages, reinstatement, and attorneys’ fees from two state judges when they failed to reappoint her to a position that she had previously held. Id. at 343. We agreed that the suit for damages was barred by the Eleventh Amendment, but held that the claim for reinstatement could go forward because it was a claim for prospective relief. Id. Specifically, we stated, Plaintiffs claim for prospective relief (reinstatement), however, is not barred by sovereign immunity. The Eleventh Amendment does not protect state officials from claims for prospective relief when it is alleged that the state officials acted in violation of federal law. Ex parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908); Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974); Brennan" }, { "docid": "13168552", "title": "", "text": "U.S.C. § 654 (2007), violated their substantive due process rights, found that Lawrence announced a broad Fourteenth Amendment right to sexual privacy. The court noted that “[t]he Lawrence Court characterized the constitutional question as ‘whether petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause”; and it further explained that “Making into account the precedent relied on by Lawrence, the tenor of its language, its special reliance on Justice Stevens’ Bowers dissent, and its rejection of morality as an adequate basis for the law in question, we are convinced that Lawrence recognized that adults maintain a protected liberty interest to engage in certain ‘consensual sexual intimacy in the home.’ ” Id. at 49, 53. The Fifth Circuit came to a similar conclusion in Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir.2008), asserting that “Mhe right the Court recognized [in Lawrence ] was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding ‘the most private human contact, sexual behavior.’ ” Id. at 744. Also, were Lawrence applicable, there is authority for Lowe’s position that a heightened standard, greater than a rational basis, may govern. Again, Lowe relies on Cook, where the First Circuit held that Lawrence “applies a standard of review that lies between strict scrutiny and rational basis” because it “balanced the strength of the state’s asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners’ private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied.” Cook, 528 F.3d at 56. In Witt v. Dep’t of the Air Force, 527 F.3d 806 (9th Cir.2008), the Ninth Circuit also considered the “Don’t Ask, Don’t Tell” policy post -Lawrence and concluded that the Lawrence Court must have applied something more stringent than rational basis review. It noted that the Supreme Court rejected Bowers not because the Bowers Court wrongly held that the statute at issue satisfied rational basis review, but because" }, { "docid": "9841160", "title": "", "text": "tribunals at the instance of private parties.” Id. at -, 116 S.Ct. at 1124. South Dakota and its state officials sued in their official capacities would, therefore, normally be immune from suit in the federal courts. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), however, the Supreme Court established a fundamental exception to the Eleventh Amendment’s immunity doctrine: Ex parte Young recognized that suits may be brought in federal court against state officials in their official capacities for prospective injunctive relief to prevent future violations of federal law. The doctrine of Ex parte Young is based on the idea that the power of federal courts to enjoin continuing violations of federal law is necessary to vindicate the federal interest in assuring the supremacy of that law. Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253, 255 (8th Cir.1995) (quotations and citations omitted). See also Denke v. South Dakota Dep’t of Social Servs., 829 F.2d 688, 689 (8th Cir.1987) (“Eleventh amendment analysis is an area dominated by formalistic rules, often neither intuitive nor strictly rational. However, over years of development, important exceptions to state immunity from suit have been recognized which allow citizens to vindicate rights infringed upon by state authorities. Extremely important in this regard is the substantial exception to the scope of the eleventh amendment represented by the case of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)[,] and its progeny.”). Defendants did not contend that SDDS VI was improperly heard by this Court in violation of the Eleventh Amendment, and we do not believe that any such argument could have been successful. As a suit for prospective declaratory relief from South Dakota’s ongoing violation of the dormant commerce clause, the Defendants could not have enjoyed immunity under the Eleventh Amendment in SDDS VI. See Ex parte Young, 209 U.S. at 159, 28 S.Ct. at 454 (“the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does" }, { "docid": "6844228", "title": "", "text": "authority.” Garrett, 531 U.S. at 363, 121 S.Ct. 955 (quotation omitted). Finally, under the doctrine announced in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), an individual seeking only prospective injunctive relief for ongoing violations of federal law may bring suit against state officials in federal courts. See Alden, 527 U.S. at 757, 119 S.Ct. 2240; Seminole Tribe v. Florida, 517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The reasoning behind the Ex parte Young exception is that if an official has performed his duties in a way that contravenes either the Constitution or a federal law, he does so outside the cloak of state authority. Because a suit against that official therefore does not impact “the State in its sovereign or governmental capacity,” Eleventh Amendment immunity is inapplicable. 209 U.S. at 159, 28 S.Ct. 441. We agree with the Fair that Title II of the ADA was not a valid abrogation of the States’ Eleventh Amendment immunity. See Thompson v. Colorado, 278 F.3d 1020, 1034 (10th Cir.2001). The Fair also asserts that the Ex parte Young exception does not apply. We disagree. In determining whether the Ex parte Young doctrine governs a case, we apply a four-part framework: First, we determine whether the action is against state officials or the state itself. Second, we look at whether the alleged conduct of the state officials constitutes a violation of federal law. Third, we assess whether the relief sought is permissible prospective relief or analogous to a retroactive award of damages impacting the state treasury. Finally, we analyze whether the suit rises to the level of implicating “special sovereignty interests.” Robinson v. Kansas, 295 F.3d 1183, 1191 (10th Cir.2002) (citations omitted). Applying the facts of this case to the doctrine of Ex parte Young renders an easy conclusion. First, this case is without question against state officials acting in their official capacity. Although plaintiffs’ Third Amended Complaint contained a claim against the State of Kansas, that claim has been dismissed and the plaintiffs have not appealed. The remaining defendants, comprised of the General" }, { "docid": "21615894", "title": "", "text": "See Westside Mothers, 133 F.Supp.2d at 575-76. Because sovereign immunity limits the jurisdiction of the Federal courts, we address it before turning to § 1983. Under the doctrine developed in Ex parte Young and its progeny, a suit that claims that a state official’s actions violate the constitution or federal law is not deemed a suit against the state, and so barred by sovereign immunity, so long as the state official is the named defendant and the relief sought is only equitable and prospective. See 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also, e.g., Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). “Since Ex parte Young ... it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.” Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citation omitted). Of course, Ex parte Young is a “fiction” to the extent it sharply distinguishes between a state and an officer acting on behalf of the state, but it is a necessary fiction, required to maintain the balance of power between state and federal governments. “The availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause.” Coeur d’Alene, 521 U.S. at 293, 117 S.Ct. 2028 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). When a court addresses a claim made under Ex parte Young it should simply ask “whether a complainant alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Id. at 296, 117 S.Ct. 2028 (O’Connor, J., concurring). On its surface this case fits squarely within Ex parte Young. Plaintiffs allege an ongoing violation of federal law, the Medicaid Act, and seek prospective equitable relief, an injunction ordering the named state officials henceforth to comply with the law. The district court nonetheless held that Ex parte Young was inapplicable" } ]

[ { "docid": "12851988", "title": "", "text": "591, 34 S.E. 1028 (1899); Brown v. Commerce Trust Co., 9 F.R.D. 317 (W.D.Mo., 1949). This case cannot be treated as a products liability case as plaintiff suggests. In products liability defendant would have to answer for any liability generated from a defective product which leaves his hands in an inherently dangerous condition and is shipped into and causes injury in Georgia. MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050; see Handler v. Remington Arms Co., 144 Conn. 316, 130 A.2d 793 (1957). In such a situation, the negligence of defendant continues across the state line and ends where the injury occurs. Here, the tort consisted of placing the landing gear on the aircraft in their manufacturing plant in Florida or Pennsylvania. While this alleged tort has continued since 1963, it has not been continued across the state lines into Georgia. Even though plaintiff lives in Georgia, his injury occurred in Florida or Pennsylvania where his property (the idea) is allegedly being misappropriated. Thus, the last event necessary to create liability took place in either Florida or Pennsylvania. Nor is this a case involving a statute of limitations which would prevent plaintiff from recovering altogether. We thus conclude that defendant is not subject to in personam jurisdiction under any section of the Georgia Long-Arm statute, and the District Court’s order to dismiss for lack of jurisdiction is affirmed. Affirmed. . That statute provides in pertinent part: 24-113.1 Personal jurisdiction over nonresidents of State. — A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to cause of action [sic] arising from any of the acts, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act within this State * * *. In 1968 an amendment was passed and added as 24-117, which reads: 24-117. Same; “nonresident” defined. — As used in this law [§§ 24-113.1 through 24-118]" } ]

[ { "docid": "5605240", "title": "", "text": "instructions on how to invest in “Broadway Joe’s” — a fast food chain that Cash was helping to organize. The Georgia long-arm statute restricts the exercise of jurisdiction to “a cause of action arising from any of the acts * * * enumerated in this section [i. e., transaction of any business, commission of a tortious act] ”. Accordingly, the Georgia Court of Appeals has held that an unrelated business transaction is irrelevant to the determination of whether a non-resident “transacts any business” within the meaning of subsection (a). Castleberry v. Gold Agency, Inc., 1971, 124 Ga.App. 694, 185 S.E.2d 557, partially overruled on other grounds, Coe & Payne Co. v. Wood-Mosaic Corp., 1973, 230 Ga. 58, 195 S.E.2d 399; Fulghum Industries, Inc. v. Walterboro Forest Products, Inc., 5 Cir., 1973, 477 F.2d 910. Since the “Broadway Joe’s” investment is not the subject matter of this litigation, as a matter of Georgia law it is of no relevance to the determination of whether Cash “transacted any business” in Georgia within subsection (a) of the statute. . See the scholarly analysis of the Georgia long-arm statute, by now Chief Judge Eden-field, in Marival, Inc. v. Planes, Inc., N.D. Ga., 1969, 302 F.Supp. 201; and Scott v. Crescent Tool Co., N.D.Ga., 1969, 296 F. Supp. 147. He presided below. . See Hull, Application of Long-Arm Statute to Foreign Corporation Not Doing Business in Georgia Committing Tortious Act Outside State Causing Injury Within State, 8 Ga. Bar J. 415 (1972). . Federal diversity courts had reached a contrary conclusion. Griffin v. Beech Aircraft Corp., 1971, 324 F.Supp. 1284; Scott v. Crescent Tool Co., N.D.Ga., 1969, 296 F. Supp. 147. . F.R.Civ.P. 54(c) provides: “ * * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” See, e. g., Equity Capital Co. v. Sponder, 5 Cir., 1969, 414 F.2d 317; Williams v. United States, 5 Cir., 1968, 405" }, { "docid": "6974345", "title": "", "text": "Court interpreted “plaintiff’s claim” as used in the third party practice statute. In our case, this would result in the district court’s having in personam jurisdiction as to Mack’s entire “cause of action” including both tort and contract theories; the contract is “related to” the jurisdiction generating tort in precisely the same way in which the Penney-Malouf contract was “related to” the tort in that case. Another recent Georgia case also leads us to hold that the jurisdiction conferred by the long arm statute embraces all theories of relief “related to” the jurisdiction generating event. In Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 195 S.E.2d 399 (1973), the Georgia Supreme Court adopted the rationale of Gray v. American Radiator Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961) in holding that “ . . .if damage occurred within the state then the tortious act occurred within the state within the meaning of subsection (b) of the Long Arm Statute.” Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399, 400 (1973). The court then reversed the state court of appeals decision which had held that no jurisdiction existed over the nonresident manufacturers of a floor product either on the basis of the companies’ having transacted business or committed a tortious act within Georgia. The suit involved both tort and contract theories of recovery in both claims and counterclaims for damages incurred in a fire allegedly caused by vapors given off by an adhesive used in laying the flooring. The court of appeals remanded the entire case for trial, in effect allowing the assertion of in personam jurisdiction as to all theories of relief arising out of the jurisdiction generating event, without regard to whether that event was the transaction of business or the commission of a tort. If a Georgia court were to face the problem with which we deal in. this case, we feel it would also be influenced by the universally broad construction which federal courts have given, in widely disparate contexts, to the phrase “cause of action” or the" }, { "docid": "5605239", "title": "", "text": "Particularly, a dispute existed as to the residency of Wages. While the complaint alleged that Wages was a citizen and resident of Georgia, the sealed Florida certification of limited partnership listed Wages as a Florida resident. Furthermore Wages executed the partnership agreement in Florida. Faced with these difficulties, the District Court invited Appellants to clarify the facts pertinent to the jurisdictional determination. Accordingly, Thorington filed a brief and affidavit. Wages failed to respond. It is settled that the burden of proof rests on the party seeking to establish jurisdiction over a non-resident. See, e. g., Marival, Inc. v. Planes, Inc., N.D.Ga., 1969, 302 F.Supp. 201, 205; Talcott v. Midnight Publishing Co., 5 Cir., 1970, 427 F.2d 1277. Having been afforded more than an ample opportunity, Wages failed to show that defendant Cash engaged in any activity within the scope of the Georgia long-arm statute with respect to Wages’ claims for relief. Consequently, the District Court properly granted the motion of dismissal with respect to Wages. . During this initial encounter, Cash provided Thorington with specific instructions on how to invest in “Broadway Joe’s” — a fast food chain that Cash was helping to organize. The Georgia long-arm statute restricts the exercise of jurisdiction to “a cause of action arising from any of the acts * * * enumerated in this section [i. e., transaction of any business, commission of a tortious act] ”. Accordingly, the Georgia Court of Appeals has held that an unrelated business transaction is irrelevant to the determination of whether a non-resident “transacts any business” within the meaning of subsection (a). Castleberry v. Gold Agency, Inc., 1971, 124 Ga.App. 694, 185 S.E.2d 557, partially overruled on other grounds, Coe & Payne Co. v. Wood-Mosaic Corp., 1973, 230 Ga. 58, 195 S.E.2d 399; Fulghum Industries, Inc. v. Walterboro Forest Products, Inc., 5 Cir., 1973, 477 F.2d 910. Since the “Broadway Joe’s” investment is not the subject matter of this litigation, as a matter of Georgia law it is of no relevance to the determination of whether Cash “transacted any business” in Georgia within subsection (a) of the statute." }, { "docid": "3423889", "title": "", "text": "in relevant part that: A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or (c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State Ga.Code Ann. § 24-113.1. Although, at first glance, it would appear that the existence of in personam jurisdiction over the foreign defendants in this case is governed by the more stringent standard of subsection (c) of the statute, the Georgia courts have construed subsection (b) to confer personal jurisdiction over nonresidents where “the negligence occurred outside the State of Georgia and the damage resulting therefrom occurred inside the State of Georgia.” Davis v. Haupt Brothers Gas Company, 131 Ga.App. 628, 630, 206 S.E.2d 598, 600 (1974); citing Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 195 S.E.2d 399 (1973). See also Mize v. Dries & Krump Manufacturing Company, Inc., Civil Action No. 13,705 (N.D.Ga. Jan. 22, 1973). The plaintiffs are, therefore, correct in urging that they need only establish fulfillment of the requirements of subsection (b), supra, to acquire personal jurisdiction over these defendants, in addition, of course, to meeting the fundamental prerequisite that the exercise of such jurisdiction comport with the principles of due process. However, this dual inquiry is facilitated by the well settled view that the Georgia long arm statute is “coterminus with the Due Process Clause.” Stanley v. Local 926 of the International Union of Operating Engineers of" }, { "docid": "3070770", "title": "", "text": "401 (5th Cir.1981). In addition, assertion of personal jurisdiction must be consistent with fourteenth amendment due process requirements, which is a question of federal law. Oswalt v. Scripto, Inc., 616 F.2d 191, 196 (5th Cir.1980); Terry v. Raymond International, Inc., supra at 401. The court finds that Plaintiff has met her burden with respect to both the statutory and constitutional requirements. O.C.G.A. § 9-10-91 (1982) (formerly Code Ann. § 24-113.1) provides, in pertinent part: A court of this state may exercise personal jurisdiction over any non-resident ... in the same manner as if he were a resident of the state, if in person or through an agent, he: # * # * # # (2) commits a tortious act or omission within the state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious injury in this state caused by an act or omission outside the state if the tort feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; * * * * * # Thus, in order for this court to have personal jurisdiction over Defendants, the court must find that Plaintiff’s copyright infringement claims allege the commission of a tortious act in the state of Georgia, within the meaning of subsection (2) or (3). Subsection (2) of the long-arm statute has been interpreted to provide jurisdiction where the tortious act occurred outside the state if the damage resulting therefrom occurs from within the state. See Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58,195 S.E.2d 399 (1973); Mays v. Laurant Publishing Limited, 600 F.Supp. 29, 30 (N.D.Ga.1984); Spelsberg v. Sweeney, 514 F.Supp. 622 (S.D.Ga.1981); Timberland Equipment, Ltd. v. Jones, 146 Ga.App. 589, 246 S.E.2d 709 (1978). The leading case interpreting subsection (2) is Shellenberger v. Tanner, 138 Ga.App. 399, 227 S.E.2d 266 (1976). In Shellenberger the court developed a three part test for determining when a non-resident defendant may be subject to the jurisdiction of a Georgia" }, { "docid": "5107255", "title": "", "text": "is currently before the court on defendants’ motion to dismiss the complaint for lack of personal jurisdiction and improper venue, Rules 12(b)(2), (b)(3), plaintiffs’ motion for leave to amend their complaint, Rule 15, and plaintiffs’ motion for a preliminary injunction, Rule 65(a), Fed.R. Civ.P. For the reasons that follow, we will deny defendants’ motion to dismiss, grant plaintiffs’ motion to amend, and grant in part and deny in part plaintiffs’ motion for a preliminary injunction. I. Motion to Dismiss The plaintiffs state claims in tort in this diversity action under Georgia Code §§ 35-1010 (unauthorized use of name when soliciting contributions), 106-201 (imitation of name, style, or emblem), 106-503 (false or fraudulent statement in advertising), 106-702 (deceptive trade practices), 106-1201 et seq. (fair business practices act), and 17 U.S.C. § 106 (copyright infringement). All of the named defendants are citizens of Ohio. In order to obtain personal jurisdiction over the defendants, the plaintiffs must invoke Georgia’s long-arm statute, Ga.Code § 24-113.1. That section provides: A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or (c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State; or (d) Owns, uses or possesses any real property situated within this State. Defendants argue that they do not have the minimum contacts with the forum that are required under Georgia law and constitutional standards of due process to permit this court to exercise" }, { "docid": "4640570", "title": "", "text": "Payne v. Kristofferson, 631 F.Supp. 39 (N.D.Ga.1985). A court can assert personal jurisdiction over a nonresident if (1) the forum state has the power to exercise that jurisdiction and (2) that state’s exercise of jurisdiction comports with constitutional due process. To answer the first question in this case, the Court must look to Georgia’s Long Arm Statute, codified at O.C.G.A. § 9-10-91. Section 91(1) of the Georgia Long Arm, which authorizes jurisdiction over a. nonresident who “[transacts any business within this state,” id., “applies only to claims based on contract and not those sounding in tort.” Lutz v. Chrysler Corp. et al., 691 F.2d 996, 997 (11th Cir.1982). As there was never any contractual relationship between Quikrete and NOMIX, § 91(1) is not applicable to this action. See Pratt Affidavit, Paragraph 4. Plaintiff’s allegations of patent invalidity , antitrust violations, unfair competition, and tortious interference with contract are all grounded in tort law and therefore depend on § 91(2) or § 91(3) for a jurisdictional basis. O.C.G.A. § 9-10-91(2) and § 9-10-91(3) state that Georgia courts may exercise personal jurisdiction over a nonresident who: (2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act; [or] (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.... In cases such as this, where jurisdiction is based on defendant’s tortious act, it is well-settled that the Georgia Long Arm Statute gives Georgia courts the power to exercise personal jurisdiction over nonresident defendants “to the maximum extent permitted by procedural due process.” Coe & Payne Co. v. Wood-Mosaic Corp. et al, 230 Ga. 58, 60, 195 S.E.2d 399 (1973). See also Coca-Cola Company v. Proctor & Gamble Co., 595 F.Supp. 304, 306 (N.D. Ga.1983). Therefore, this Court need only consider whether the exercise of personal jurisdiction over NOMIX comports with" }, { "docid": "4640571", "title": "", "text": "courts may exercise personal jurisdiction over a nonresident who: (2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act; [or] (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.... In cases such as this, where jurisdiction is based on defendant’s tortious act, it is well-settled that the Georgia Long Arm Statute gives Georgia courts the power to exercise personal jurisdiction over nonresident defendants “to the maximum extent permitted by procedural due process.” Coe & Payne Co. v. Wood-Mosaic Corp. et al, 230 Ga. 58, 60, 195 S.E.2d 399 (1973). See also Coca-Cola Company v. Proctor & Gamble Co., 595 F.Supp. 304, 306 (N.D. Ga.1983). Therefore, this Court need only consider whether the exercise of personal jurisdiction over NOMIX comports with constitutional due process. 1. Two Types of Personal Jurisdiction: General and Specific. To distinguish between general personal jurisdiction and specific personal jurisdiction, courts must examine the relationship between the cause of action and the defendant’s contact with the forum. “General personal jurisdiction arises from a party’s contacts to the forum state that are unrelated to the litigation; the test for general jurisdiction is whether the party had ‘continuous and systematic’ general business contacts with the forum state.” Delong Equipment Co. v. Washington Mills Abrasive Co. et al., 840 F.2d 843, 853 (11th Cir.1988) (quoting Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 415, 96 L.Ed. 485 (1952)). If a defendant business is found to have the requisite continuous and systematic general business contacts with a forum, then it is amenable to suit in that forum even if plaintiff’s cause of action does not stem from or relate directly to defendant’s contacts. See Helicopteros Nacionales de Colombia, S.A. v. Hall, et al., 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80" }, { "docid": "23239198", "title": "", "text": "that service of process on BCS was authorized. The Clayton Act provision applies only to corporations, however, and there is no other appropriate federal service statute or order applicable to individual non-corporate defendants in antitrust litigation. Service of process on Robert and William therefore must be made in accordance with the applicable Georgia statute, O.C.G.A. § 9-10-94. Vest v. Waring, 565 F.Supp. at 693 n. 24. Section 9-10-94 provides that a non-resident may be served in the same manner as a resident if the non-resident is subject to Georgia’s long-arm statute, O.C.G.A. § 9-10-91. Consequently, we must determine whether the Georgia long-arm statute applies to the individual defendants, William and Robert Biebel. The Georgia long-arm statute, O.C.G.A. § 9-10-91, provides in part: A court of this state may exercise personal jurisdiction over any nonresident ... as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: (1) transacts any business within this state; (2) commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; ... Delong contends that personal jurisdiction is supported under each of the three prongs of the long-arm statute. It is clear, however, that the “transacts any business” test of O.C.G.A. § 9-10-91(1) applies only to contract claims. Lutz v. Chrysler Corp., 691 F.2d 996, 997 (11th Cir.1982) (adopting holding of Whitaker v. Krestmark of Alabama, Inc., 157 Ga.App. 536, 537-38, 278 S.E.2d 116, 118 (1981)); Psychological Resources Support Systems, 624 F.Supp. at 485. The claims presented in this case, alleging conspiracy and other antitrust violations, sound in tort rather than contract" }, { "docid": "5605241", "title": "", "text": ". See the scholarly analysis of the Georgia long-arm statute, by now Chief Judge Eden-field, in Marival, Inc. v. Planes, Inc., N.D. Ga., 1969, 302 F.Supp. 201; and Scott v. Crescent Tool Co., N.D.Ga., 1969, 296 F. Supp. 147. He presided below. . See Hull, Application of Long-Arm Statute to Foreign Corporation Not Doing Business in Georgia Committing Tortious Act Outside State Causing Injury Within State, 8 Ga. Bar J. 415 (1972). . Federal diversity courts had reached a contrary conclusion. Griffin v. Beech Aircraft Corp., 1971, 324 F.Supp. 1284; Scott v. Crescent Tool Co., N.D.Ga., 1969, 296 F. Supp. 147. . F.R.Civ.P. 54(c) provides: “ * * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” See, e. g., Equity Capital Co. v. Sponder, 5 Cir., 1969, 414 F.2d 317; Williams v. United States, 5 Cir., 1968, 405 F.2d 234; Molnar v. Gulfcoast Transit Co., 5 Cir., 1967, 371 F.2d 639; Burton v. State Farm Mutual Automobile Ins. Co., 5 Cir., 1964, 335 F.2d 317; South Falls Corp. v. Rochelle, 5 Cir., 1964, 329 F.2d 611; Smoot v. State Farm Mutual Automobile Ins. Co., 5 Cir., 1962, 299 F.2d 525. . See Coe & Payne Co. v. Wood-Mosaic Corp., 1973, 230 Ga. 58, 195 S.E.2d 399; Griffin v. Beech Aircraft Corp., supra; Scott v. Crescent Tool Co., supra. . Gray v. American Radiator, supra; Jetco Electronic Industry v. Gardiner, 5 Cir., 1973. 473 F.2d 1228 (Texas long-arm statute) ; Eyerly Aircraft Co. v. Killian, 5 Cir., 1969, 414 F.2d 591; Coulter v. Sears & Roebuck Co., 5 Cir., 1970, 426 F.2d 1315. . M.G.L.A. Ch. 223A, § 3(c) “causing tor-tious injury by an act or omission in this commonwealth * * * . We necessarily express no opinion on the merits of this controversy. . See Hull, note 7, supra, at 422-27." }, { "docid": "3423888", "title": "", "text": "within the State of Georgia upon whom service could be effected, or any other agent upon whom service could be effected, has never produced or manufactured any product in the United States of America, and has never dealt directly with any individual or entity located within the State of Georgia. Brief of Toyota Motor Company, Ltd., filed March 19, 1975, at 3-4. Based upon this recitation of facts, the defendant contends that, as a matter of state and federal constitutional law, it has had insufficient contacts with Georgia to render it amenable to suit here. In a diversity suit such as this, “a federal district court may exercise in personam jurisdiction over a foreign defendant only if a state court could do so in the proper exercise of state law.” Mack Trucks v. Arrow Aluminum Castings Co., 510 F.2d 1029, 1031 (5th Cir. 1975). See also Arrowsmith v. United Press International, 320 F.2d 219 (2nd Cir. 1963). In Georgia, personal jurisdiction over nonresident defendants is obtained pursuant to the Georgia long arm statute, which provides in relevant part that: A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or (c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State Ga.Code Ann. § 24-113.1. Although, at first glance, it would appear that the existence of in personam jurisdiction over the foreign defendants in this case is governed by the" }, { "docid": "5605237", "title": "", "text": "due process clause. By sending material misrepresentations to Appellant in Georgia with the evident intention that they there be relied upon and by further mailing the contract in question into Georgia for execution, Cash “purposely avail [ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 1958, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298. We do not determine whether Cash’s contacts with Georgia would be sufficient to satisfy the seemingly more restrictive requirements of subsection (c) (conduct without/tortious injury within — post-1970) since we are Erie-bound by the Georgia Court of Appeals undisturbed ruling in Coe & Payne that subsection (c) does not apply retroactively. Reversed and remanded. . We have been unable to determine from the record whether Appellant Wages participated in the matrimonial ceremony. . See International Show Company v. Washington, 1945, 326 U.S. 810, 66 S.Ct. 154, 90 L.Ed. 95. . Ga.Code Ann. 24-113.1. Personal jurisdiction over nonresidents of State. — A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or (c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State; or (d) Owns, uses or possesses any real property situated within this State. . The complaint left doubts as to the details of the respective participation of Appellants in the transactions of jurisdictional significance." }, { "docid": "3241189", "title": "", "text": "part: A court of this State may exercise personal jurisdiction over any nonresident as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, . . . if in person or through an agent, he: (a) Transacts any business within this state . . . . The words of the statute, taken literally, might appear to restrict the Georgia courts’ exercise of jurisdiction to less than that permitted by due process, for the statute requires that the cause of action “arise from” the transaction of business “within the State.” We do not interpret the act on a clean slate, however. We are bound by all the law of the forum state, including interpretations by its courts. Wilkerson v. Fortuna Corp., 554 F.2d 745, 747-48 (5th Cir.), cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977). We turn first to the pronouncements of the Georgia courts. ' It is clear that since 1973 the Georgia Supreme Court has interpreted the long-arm statute liberally. Gold Kist argues that the Georgia Supreme Court has declared the reach of the long-arm act to be coextensive with that permitted by due process, pointing to the following language: “[T]he Long-Arm Statute contemplates that jurisdiction shall be exercised over non-resident parties to the maximum extent permitted by procedural due process.” Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399, 401 (1973). Moreover, that language has been frequently reiterated by subsequent courts. See, e. g., Brooks Shoe Manufacturing, Inc. v. Byrd, 144 Ga.App. 431, 432, 241 S.E.2d 299, 300-01 (1977); Cox v. Long, 143 Ga.App. 182, 237 S.E.2d 672, 673 (1977). See also Shingleton v. Armor Velvet Corp., 621 F.2d 180 at 182 (5th Cir. 1980). The defendant contends that it is only subsections (b) and (c) of § 24-113.1, which apply to tort actions, that Georgia courts have interpreted to be coextensive with due process. Although it is true that the courts have been most emphatic in their expansive reading of the long-arm act in the tort cases under" }, { "docid": "5107256", "title": "", "text": "nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or (c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State; or (d) Owns, uses or possesses any real property situated within this State. Defendants argue that they do not have the minimum contacts with the forum that are required under Georgia law and constitutional standards of due process to permit this court to exercise jurisdiction over them. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Most of the cases cited by defendants construe subsection (a) of the statute. We have held this “transacting business” provision, however, to be inapplicable to tort actions. Scott v. Crescent Tool Co., 296 F.Supp. 147, 152-53 (N.D.Ga.1968). Plaintiffs instead rely primarily on subsections (b) and (c). These portions of the Georgia long-arm law have been held to extend Georgia’s assertion of personal jurisdiction “to the maximum limits permitted by due process.” Shellenberger v. Tanner, 138 Ga. App. 399, 227 S.E.2d 266, 273 (1976). See Freeman v. Motor Convoy, 409 F.Supp. 1100, 1106-07 (N.D.Ga.1976). The commission of a negligent act outside the state causing injury within the state may constitute commission of a tortious act within the state. See Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 195 S.E.2d 399 (1973). For subsection (b) to furnish a jurisdictional base for plaintiffs’ claim against the nonresident movants, plaintiffs must show three things: (1) The nonresident has" }, { "docid": "6474605", "title": "", "text": "with Hayes in an individual capacity. The evidence presented at trial compels the conclusion that a partnership existed between Hayes and Irwin for the purpose of soliciting clients and transacting their investments. Since a partnership existed, the court must next determine if it transacted business in Georgia and had sufficient contacts with Georgia that would allow a proper exercise of in personam jurisdiction over Irwin. II. JURISDICTION In personam jurisdiction in this case is predicated on Georgia’s Long Arm Statute, Ga.Code Ann. § 24-113.1, which provides: A court of this state may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or (c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State; or (d) Owns, uses, or possesses any real property situated within this State. On March 30, 1979, prior to the trial of this case, the Honorable Newell Edenfield entered an order denying Irwin’s motion to dismiss for lack of personal jurisdiction but indicating that a finding of jurisdiction was impossible absent a resolution of the business relationship issue and further development of the facts. Judge Edenfield did hold that Count 1 (malicious interference with business relations) and Count 2 (defamation) could not be based on subsection (b) of Ga.Code Ann. § 24 — 113.1. He reserved any ruling on the applicability of subsection (c), since numerous issues of fact remained. He did remark, “[I]t appears to this court that defendant Irwin has" }, { "docid": "6474628", "title": "", "text": "parts A and B of this order. This court is persuaded that jurisdiction under subsection (c) is reasonable, see, e.g., Thorington v. Cash, 494 F.2d 582, 587 (5th Cir. 1974), since Irwin, by way of Irwin Eurotrade Partnership, had a London office and could be expected to do business there which would have an effect on the Georgia clients who were, through Hayes, partners in Irwin Eurotrade. Accordingly, jurisdiction over Irwin with respect to Count 3 is proper. D. Counts 4 and 5 (Accounting and One-Half of the Profits) These two portions of the plaintiff’s complaint allege that Hayes is entitled to one-half of the net profits from all business done by and through Irwin and his companies in 1976 and that Hayes is entitled to a complete accounting of the business. Jurisdiction is based on subsection (a) of the Long Arm Statute, which requires that the cause of action arise from the transaction of business within the state. Subsection (a) is to be construed to extend jurisdiction to the limits of due process, Coe & Payne Co. v. Wood-Mosiac Corp., 230 Ga. 58, 195 S.E.2d 399 (1973); Brooks Shoe Manufacturing, Inc. v. Byrd, 144 Ga.App. 431, 241 S.E.2d 299 (1977), an interpretation which is consistent with the holding in J. C. Penney Co. v. Malouf Co., 230 Ga. 140, 196 S.E.2d 145 (1973), in which the Georgia Supreme Court equated “transacting any business” in Georgia with the requirement of due process. It is true that an isolated act that might constitute a “contact” leading to a tort may not rise to the level of “transacting business” when jurisdiction is based on contract. Swafford v. Avakian, 581 F.2d 1224 (5th Cir. 1978); Shellenberger v. Tanner, 138 Ga.App. 399, 227 S.E.2d 266 (1976). However, as the court in Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375 (5th Cir. 1980), held, this result obtains as readily under the due process clause as under the Georgia Long Arm Statute. A plaintiff basing jurisdiction on subsection (a) of the Long Arm Statute must establish (1) that the nonresident defendant purposely did" }, { "docid": "5605238", "title": "", "text": "court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or (c) Commits a tortious injury in this State caused by an act or omission outside this State, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State; or (d) Owns, uses or possesses any real property situated within this State. . The complaint left doubts as to the details of the respective participation of Appellants in the transactions of jurisdictional significance. Particularly, a dispute existed as to the residency of Wages. While the complaint alleged that Wages was a citizen and resident of Georgia, the sealed Florida certification of limited partnership listed Wages as a Florida resident. Furthermore Wages executed the partnership agreement in Florida. Faced with these difficulties, the District Court invited Appellants to clarify the facts pertinent to the jurisdictional determination. Accordingly, Thorington filed a brief and affidavit. Wages failed to respond. It is settled that the burden of proof rests on the party seeking to establish jurisdiction over a non-resident. See, e. g., Marival, Inc. v. Planes, Inc., N.D.Ga., 1969, 302 F.Supp. 201, 205; Talcott v. Midnight Publishing Co., 5 Cir., 1970, 427 F.2d 1277. Having been afforded more than an ample opportunity, Wages failed to show that defendant Cash engaged in any activity within the scope of the Georgia long-arm statute with respect to Wages’ claims for relief. Consequently, the District Court properly granted the motion of dismissal with respect to Wages. . During this initial encounter, Cash provided Thorington with specific" }, { "docid": "15749658", "title": "", "text": "for lack of in personam jurisdiction depends upon the statutory and constitutional reach of Georgia Code § 24-113.1, the Georgia “long-arm” statute. In this diversity case, § 24-113.1, dealing with amenability of nonresident persons, such as Tampa, to personal jurisdiction in Georgia, is controlling. It is now clear, after some controversy, see, e.g., Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir., 1960), that Federal Rules 4(d) (3), (7) do not establish a federal standard for amenability of a corporation to service of process, and that in diversity cases, state law must govern. Arrowsmith v. United Press International, 320 F.2d 219, 6 A.L.R.3d 1072 (2d Cir., 1963); Jennings v. McCall Corp., 320 F.2d 64 (8th Cir., 1963); Walker v. General Features Corp., 319 F.2d 583 (10th Cir., 1963); Smartt v. Coca-Cola Bottling Corp., 318 F.2d 447 (6th Cir., 1963). See, also, Kaplan, Federal Rules Amendments, 77 Harv.L.Rev. 601, 629-632 (1964). Georgia Code § 24-113.1 provides: “Personal jurisdiction over nonresidents of State. — A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to cause of action arising from any of the acts, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he “(a) Transacts any business within this State; or “(b) Commits a tortious act within this State, except as to a cause of action for defamation of character arising from the act; or “(c) Owns, uses, or possesses any real property situated within this State.” In the main action, plaintiff has sued defendant for damages arising from the alleged unairworthy condition of the Cessna 310-D, which defendants sold to plaintiff in April of 1968. Plaintiff bases its suit on fraudulent misrepresentation, and breach of express and implied warranties. Defendants’ third-party action against Tampa alleges breach of express and implied warranties on the Cessna 310-D, initially sold to defendants by Tampa. Defendants base their opposition to Tampa’s motion to dismiss on the fact that Tampa transacted business in Georgia as to" }, { "docid": "16203257", "title": "", "text": "appellant’s claim that Georgia has jurisdiction over RNUR in this case as an argument based on a specific jurisdiction theory, insofar as the contacts between Georgia and RNUR relate to this litigation. See Bearry v. Beech Aircraft Corp., 818 F.2d 370, 374 (5th Cir.1987) (holding that specific jurisdiction rests on the state’s “direct interest in the cause of action,\" which is heightened if the harm occurs in the forum and if the plaintiff is a resident of the forum). .O.G.C.A. § 9-10-91 provides, in part: A court of this state may exercise personal jurisdiction over any non-resident ... as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: (1) Transacts any business within this state; (2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act; [or] (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.... The parties in this case agree that § 9-10-91(3) is the statutory provision relevant to the question of whether Georgia possesses jurisdiction over RNUR in this case. . Appellees in this case, and courts in other cases, have maintained that the decision of the Georgia Supreme Court in Gust v. Flint, 257 Ga. 129, 356 S.E.2d 513 (1987), represents a retreat from the expansive construction given the Georgia long-arm statute by Georgia and federal courts. Although recognizing that the Flint decision has not overruled explicitly the prior line of cases reading the Georgia long-arm statute broadly, several courts have indicated that \"Flint heralds a renewed emphasis on the literal language of the Georgia long-arm statute.” Cartwright v. Fokker Aircraft U.S.A., Inc., 713 F.Supp. 389, 392 (N.D.Ga.1988). See" }, { "docid": "16486137", "title": "", "text": "this issue. Baldwin v. Iowa State Traveling Men’s Assoc., supra, 283 U.S. at 525, 51 S.Ct. at 518. Furthermore, Covington chose to use the machinery of the New York court to enforce its judgment by seeking to reach New York assets. Under these circumstances, for the reasons discussed above, we hold that appellees properly sought to void the Georgia default judgment in the court below via a motion under Rule 60(b)(4). II. In Personam Jurisdiction Of The Georgia Court. Covington’s assertions of jurisdiction are based on the Georgia long-arm statute which states in part: A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or posses sion enumerated in this section, in the same manner as if he were a resident of this State, if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act; or Ga.Code § 24-113.1. The court below held that Covington had not established in personam jurisdiction over Resintex and Susskind under either subsection (a) or (b). A. Transacting Business. Judge Pratt noted that Covington relies on communications between the parties in Atlanta and Switzerland in the form of telexes to show that Resintex transacted business in Georgia. These telexes led to the establishment of letters of credit in favor of Resintex to pay for denim which was shipped to Haitex, Covington’s subsidiary in Haiti. A comparison between these contacts and contacts in several cases interpreting subsection (a) of the Georgia long-arm statute is useful in determining whether the Georgia courts would extend the “jurisdictional welcome mat” to these parties. Thorington v. Cash, 494 F.2d 582, 584 (5th Cir. 1974). Judge Pratt cited O.N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256, 206 S.E.2d 437 (1974), as a leading case on the scope of the Georgia statute. In Jonas, agents of" } ]

[ { "docid": "19812456", "title": "", "text": "Civil Code § 1770 et seq., however this Court previously dismissed this cause of action following SMC’s Motion to Dismiss. Docket No. 32. Plaintiff has not attempted to amend this cause of action. . SMC has requested judicial notice of a printout from Neighborhood Watch, a web site that displays data on lenders and appraisers, located at https://entp.hud.gov/sfnw/ public/. Plaintiff does not object to this request, nor does she contest the facts contained therein. Because these facts are not subject to reasonable dispute, and are capable of determination using sources whose accuracy cannot reasonably be questioned, this Court takes judicial notice of the fact that Home Center is a HUD-approved loan correspondent. See New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 702 n. 22 (10th Cir.2009) (taking judicial notice of data on web sites of federal agencies). . As discussed further below, this definition explicitly includes \"loan correspondent[s] approved under 24 CFR 202.8 for Federal Housing Administration programs ....” 24 C.F.R. § 3500.2. . Mark. T. Johnson (\"Johnson”), counsel for Plaintiff, submitted a declaration in support of the Opposition to the Motion for Summary Judgment. Docket No. 57. This declaration included excerpts from a transcript of the deposition of Michael Fullam (\"Fullam”), a real estate salesperson employed by Home Center. Fullam Depo. at 21:17-22:24. . The various HUD Mortgagee Letters cited in this Order are available on HUD’s website, and are located at http://www.hud.gov/offices/ adm/hudclips/letters/mortgagee/. . The role of non-approved entities has been restricted since HML 08-14 was issued. After October 1, 2008, only HUD-approved mortgagees or loan correspondents “may participate and be compensated for the origination of HECMs to be insured by FHA.’’ HUD Mortgagee Letter 2008-24 (Sept. 16, 2008) at 1-2. . This same provision again appeared in HUD’s HECM Handbook, Dir. No. 4235.1 REV-1 (Nov. 18, 1994) ¶ 6-13(1). The HUD Housing Handbooks cited in this Order are available on HUD’s website, and are located at http://www.hud.gov/offices/adm/hudclips/ handbooks/hsgh/. . The Court takes judicial notice of these exhibits for the same reasons that it took judicial notice of the exhibit submitted by SMC, discussed in footnote" } ]

[ { "docid": "17862324", "title": "", "text": "n. 8 (9th Cir.2005) (granting plaintiff's request to take judicial notice of the legislative history of a state statute); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001) (explaining that a court may judicially notice undisputed matters of public record but not disputed facts stated therein); Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1064 n. 7 (9th Cir.1998) (holding that state health department records were proper subjects of judicial notice); Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir.1997) (noting that a court \"may properly take judicial notice of the papers filed” in both federal and state court proceedings); United States ex rel. Robinson Ranche-ría Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) (\"[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue. The proceedings before the California Superior Court are 'directly related’ to this appeal and may in fact be disposi-tive. Accordingly, we take notice of that court’s final judgment ..citations and internal quotation marks omitted); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986) (observing that the court may take judicial notice of the records and reports of state administrative bodies), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Therefore, the court grants Louie's request that it take judicial notice of certain portions of the legislative history of Labor Code § 351, as well as various opinion letters issued by federal and slate regulatory agencies regarding the legality of mandatory tip-pooling arrangements. In addition, the court grants defendant's request for judicial notice of the Los Angeles Superior Court's Order Granting Defendant’s Motion for Judgment on the Pleadings in Farmer et al. v. American Restaurant Group, Inc. et al., No. BC 349068 (filed Sept. 19, 2006), as well as the caption pages of sixteen complaints filed by Louie’s attorney in Superior Court. Each complaint alleges that mandatory tip-pooling arrangements violate" }, { "docid": "5322798", "title": "", "text": "filed a charge with the D.C. Office of Human Rights on February 23, 2011. (See Dkt. No. 11 at 12.). He attached a copy of the complaint to the Opposition. (Id. at Ex. 3, see also, Ex. 5 (letter from the D.C. Office of Human Rights confirming that Plaintiff filed a charge with it on February 23, 2011)). Defendant argues that the court should disregard this evidence because Plaintiff failed to allege facts pertaining to the same in the Amended Complaint. (See Dkt. No. 13 at 11.). The court disagrees. In deciding a 12(b)(6) motion, a court may consider \"the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citation omitted); Cole v. Boeing Co., 845 F.Supp.2d 277, 283-84 (D.D.C.2012) (same). A court may consider extrinsic documents not expressly reference in the complaint without converting the motion to a summary judgment motion if the document is a matter of public record which the court may take judicial notice. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). Defendant does not dispute the content nor the authenticity of the complaint filed with the D.C. Office of Human Rights, and there is no unfairness to either party in considering the document. Accordingly, the court will take judicial notice of it. See, e.g., Williams v. Chu, 641 F.Supp.2d 31, 34 (D.D.C.2009) (taking judicial notice of an EEOC decision); Muhammad v. New York City Transit Auth., 450 F.Supp.2d. 198, 204-205 (S.D.N.Y.2006) (holding that plaintiff's EEOC charge and the agency’s determination are both public records, of which the court may take judicial notice), see also, Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.2004) (noting that failure to “plead around” a likely affirmative defense is typically not a proper basis for dismissal). . \"Claims alleging a hostile work environment under § 1981 are analyzed using the same standards at Title VII claims.” Elmahdi v. Marriott Hotel Services, Inc., 339 F.3d 645, 652" }, { "docid": "20296653", "title": "", "text": "resort to sources whose accuracy cannot be questioned); Ruiz v. Gap, Inc., 540 F.Supp.2d 1121, 1124 (N.D.Cal.2008) (declining to take judicial notice of webpage containing list of reported identity theft breaches in California because materials “not remotely akin to the type of facts which may be appropriately judicially noticed.”). Here, the documents sought to be judicially noticed are capable of accurate and ready determination because they are standard documents. These documents are judicially noticeable for the fact that they exist, not whether, for example, the documents are valid or binding contracts. Plaintiff argues that several issues relating to these documents are in dispute. Although Plaintiff argues that there has been no showing that the documents cover the entire relevant market, Defendant has submitted a follow-up declaration from Patrick King attaching additional packaging information since 2005, which resolves this issue. See King Deck Ex. 1-4. Plaintiff also argues that the Terms of Use document is dated September 2008, so Defendant cannot argue that it was provided to all Xbox customers during the relevant period since 2005. Plaintiffs argument, however, goes to the weight of the evidence, not to whether the documents are judicially noticeable. See In re NVIDIA GPU Litig., 2009 WL 4020104 at *8 (N.D.Cal. Nov. 19, 2009) (taking judicial notice of certain documents (including web pages), even though the defendant failed to demonstrate that the documents were the warranties that applied to all of the class computers purchased during the class period or even whether the warranties comprised the full extent of the applicable warranties). Necessarily relied on in complaint Defendant also argues that judicial notice is appropriate because Plaintiffs claim depends on these documents. See Knievel v. ESPN, Inc., 393 F.3d 1068, 1076 (9th Cir.2005) (judicial notice appropriate where the plaintiffs claim depends on the contents of a document, stating: “We have extended the ‘incorporation by reference’ doctrine to situations in which the plaintiffs claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does" }, { "docid": "8992332", "title": "", "text": "the Toyota Defendants contend is incorporated by reference in the AFELMCC. (See Defs.’ RJN at 2 & Ex. 3; ¶¶ 161 & n. 22.). Specifically, Plaintiffs allege the following: In a series of Field Technical Reports from 2006-2010 involving Toyota Camrys, technicians from Hong Kong confirmed UA events and that these events were not caused by pedal or floor mats. The UA events were duplicated without triggering a DTC [diagnostic trouble code]. These technicians strongly urged TMS to investigate since the problem was highly dangerous and the incidents were stacking up. In many of these instances, the report noted that “no effective rectification can be done at this moment” and that the exact cause was “unknown.” These reports “strongly request TMS to investigate this case a top priority.” (¶ 161.) For support, Plaintiffs cite a document that is identified by Bates number, but do not attach it to the AFELMCC. {See id. at n. 22 (identifying a document designated “TOY-MDL-88641”).) Pursuant to Federal Rule of Evidence 201, “[a] court shall take judicial notice if requested by a party and supplied with the necessary information.” Fed.R.Evid. 201(d). An adjudicative fact may be judicially noticed if it is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Generally, courts may take judicial notice of public documents. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001). This general principle has been applied to permit courts to judicially notice SEC filings. Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1064 n. 7 (9th Cir.2008) (noting that SEC filings are properly subject to judicial notice). Additionally, courts may take judicial notice of documents incorporated by reference in the operative complaint. See, e.g., al-Kidd v. Ashcroft, 580 F.3d 949, 954 n. 6 (9th Cir.2009). Plaintiffs do not voice any objection to the Toyota Defendants’ requests. Because the materials proffered by the Toyota Defendants embrace proper subjects of judicial notice," }, { "docid": "20058952", "title": "", "text": "court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not subject to reasonable dispute.” Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir.2007). These documents are public records, and properly subject to judicial notice. See Hotel Employees & Rest. Employees Local 2 v. Vista Inn Mgmt. Co., 393 F.Supp.2d 972, 978 (N.D.Cal.2005). Allen offers only perfunctory challenges to these documents. See Opp’n to RJN. The Court finds that none of these challenges raise a “reasonable dispute” with respect to the documents’ authenticity. For example, Allen objects to notice of the Deed of Trust, RJN Ex. 3, on the grounds that it is missing a document stamp from the Alameda County Recorder and because it does not attach the Balloon Riders referenced in the document. Opp’n to RJN ¶¶ 3-4. However, the Balloon Riders are in fact attached. See Deed of Trust at 40-47. Allen clearly received and signed these documents, including the Riders, as they bear his signature. Id. Finally, the documents show time stamps identical to those reflected on the web page of the Clerk for the County of Alameda. Judicial notice of these documents is proper. Allen also objects to notice of a Purchase Assumption Agreement (“PAA”) between JP Morgan and the Federal Deposit Insurance Corporation (“FDIC”), RJN Ex. 7, which purports to limit the liability assumed by JP Morgan when it acquired certain rights and obligations of Washington Mutual. Opp’n to RJN ¶5. Allen correctly notes that several pages are missing — indeed, Defendants neglected to attach the most important pages of the PAA; i.e., those that contain the clauses that purport to limit JP Morgan’s liability. Nevertheless, the Court grants Defendants’ RJN because the entire PAA is available online, from the FDIC’s web site, as reflected in the memorandum attached to the RJN. RJN at 3; see also New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 702 n. 22 (10th Cir.2009) (taking judicial notice of data on web sites of" }, { "docid": "5087758", "title": "", "text": "special forbearance agreement between Mr. Jara and Aurora dated May 8, 2009; (8) a Home Affordable Modification Trial Period Plan effective August 17, 2009; (9) a substitution of trustee that was recorded in the San Mateo County Official Records on November 4, 2008; (10) a notice of default that was recorded in the San Mateo County Official Records on September 25, 2008; (11) a corporate assignment of deed of trust that was recorded in the San Mateo County Official Records on November 10, 2008; (12) a notice of trustee's sale that was recorded in the San Mateo County Official Records on February 4, 2010; (13) a trustee’s deed upon sale that was recorded in the San Mateo County Official Records on September 7, 2010; (14) a federal stock charter for Lehman Brothers Bank, FSB that was executed by the Office of Thrift Supervision (\"OTS”), an OTS order approving Lehman Brothers Bank, FSB’s application to establish certain operating subsidiaries, and a secretary’s certificate identifying Aurora Loan Services LLC as a subsidiary of Lehman Brothers Bank, FSB; and (15) a secretary’s certificate certifying that Lehman Brothers Bank, FSB changed its name to Aurora Bank FSB on April 24, 2009. RJN, ECF No. 62, Exs. 1-15. The court may take judicial notice of matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001). Because Exhibits 3, 9, 10, 11, 12, and 13 are public records, the court took judicial notice of the undisputable facts contained in them. See Hotel Employees & Rest. Employees Local 2 v. Vista Inn Mgmt. Co., 393 F.Supp.2d 972, 978 (N.D.Cal.2005); Fed.R.Evid. 201(b); see also Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256, 264-67, 129 Cal.Rptr.3d 467 (2011). And although several other docu ments (Exs. 1, 2, 4, 5, 6, 7, and 8) are not public records, the court took judicial notice of them because they are documents whose authenticity was not challenged and Mr. Jara’s complaint relied upon them. See Knievelv. ESPN, 393 F.3d 1068, 1076-77 (9th Cir.2005). The court did not, though, take judicial notice of Exhibits 14 and 15" }, { "docid": "15938062", "title": "", "text": "dismiss, Aurora filed a request asking that the court take judicial notice of documents allegedly related to plaintiffs claims. In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). It may, however, consider documents that are proper subjects of judicial notice. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 991 (9th Cir.2009) (court may consider “matters of which [it] may take judicial notice” in deciding motion to dismiss); Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir.2007) (“[a] court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not subject to reasonable dispute,” quoting Lee v. City of Los Angeles, 250 F.3d 668, 677 (9th Cir.2001)). Aurora requests that the court take judicial notice of the following documents: the trustee’s deed on sale for the Woodland Hills property, the Federal Stock Charter for Lehman Brothers Bank FSB, the Office of Thrift Supervision’s Order Approving Aurora Loan Services as an Operating Subsidiary of Lehman Brothers Bank, the Secretary’s Certificate attesting that Lehman Brothers Bank FSB changed its name to Aurora Bank FSB, a certification by the Delaware Secretary of the State authenticating the certificate of incorporation for Aurora Loan Services Inc., filed May 15, 1997, Aurora’s certificate of conversion from a corporation to an LLC, and a certificate of amendment changing Aurora’s Certificate of Formation to reflect its designation as a limited liability company. “Judicial notice is appropriate for records and ‘reports of administrative bodies.’” United States v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir.2008) (quoting Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1954)). The trustee’s deed on the sale of the Woodland Hills property is a document" }, { "docid": "17555011", "title": "", "text": "of the date of this Order. Failure to meet the 21-day deadline to file an amended complaint or failure to cure the defi ciencies identified in this Order will result in a dismissal with prejudice. Gustavson may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15. IT IS SO ORDERED. . While a district court generally may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion, a court may take judicial notice of documents referenced in the complaint, as well as matters in the public record, without converting a motion to dismiss into one for summary judgment. See Lee v. City of LA., 250 F.3d 668, 688-89 (9th Cir.2001). A matter may be judicially noticed if it is either \"generally known within the territorial jurisdiction of the trial court” or \"can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). In addition, under the \"incorporation by reference” doctrine, a district court may consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (alteration in original) (internal quotation marks omitted). The Court finds Exhibits A, B, C, D, E, F, and G (attached to Wrigley Mot.), as well as Exhibits J, K, L, M, and N (attached to Mars Mot.) to be appropriate for judicial notice, as they are packaging labels for twelve Wrigley or Mars products that the FAC specifically references and quotes. In addition, the Court takes judicial notice of Exhibits O, P, Q, and R (attached to Mars Mot.), which are screenshots taken from the website www.cocoavia.com, and which are referenced in the FAC. See FAC ¶ 164. The remaining documents for which the parties request judicial notice include a 2009 FDA Guidance Document regarding food labeling available on the FDA's website (Ex. I, attached to Wrigley Mot.); an FDA response letter also available" }, { "docid": "2201038", "title": "", "text": "the disclosures that Gmail users received. See id., Fig. 4. Furthermore, the FAC does not state what email service each of the named Plaintiffs used. See id. ¶¶ 13-21. At the hearing, however, Plaintiffs’ counsel represented that all of the named Plaintiffs used a Gmail account to sign up for Linkedln. Tr. 18:13-16. . A screen shot of this page does not appear in the FAC. However, Defendant requests judicial notice of a screenshot of this page, which the Court grants for the reasons stated in infra Section III. . In the FAC, Plaintiffs allege that signing up in the first instance is not the only way that users are led to this page. Rather, existing Linkedln users are greeted on the Linkedln homepage by a link that states \"See Who You Already Know on Linkedln.” EOF No. 7 ¶ 42. Under that title is a screen that allows the user to input her email address. Like new registrants, this field is pre-populated with the email address affiliated with the user’s Linkedln account. If the user clicks the \"Continue” button under the email address, she is directed to the “Why not invite some people?” page. See id. V 44. . The parties confirmed after the hearing on the instant Motion that Figure 7 of the FAC contains an accurate version of the endorsement email. See ECF No. 42. . Plaintiffs selectively quote this blog post in the FAC, but the Court takes judicial notice of the entire document, which is available at http://blog.linkedin.com/2009/03/27/how-to-report-abusive-behavior-on-linkedin/, because the document has been incorporated by reference into the FAC. See infra Section II.C. . In addition, Plaintiffs attach two judicial documents (an order and a complaint) to their Request for Judicial Notice, though they do not explicitly request judicial notice of these documents. See ECF No. 25-2, Exs. E-F. The Court takes judicial notice of these documents. See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 n. 1 (9th Cir.2004) (holding that \"undisputed matters of public record” are proper subjects for judicial notice). . Defendants, in a footnote, move to" }, { "docid": "11632282", "title": "", "text": "refers to this notice. Compl. ¶ 140. In addition, Plaintiffs attached the letter as a Exhibit B to their original complaint. Accordingly, the Court will consider the letter as being incorporated into the pleading. Silicon Graphics, 183 F.3d at 986. 2. Screen Shots of Web Pages Defendant Provide asks the Court to take judicial notice of eleven exhibits which are screen shots of webpages from the internet. Plaintiffs object to the exhibits. These exhibits include an EASYSAVER Rewards popup (or slider) window (Ex. 1), four versions of the EASYSAVER Rewards Policy (Exs. 2-5), four versions of EMI’s Enrollment page (Exs. 6-9); and two versions of Provide’s Privacy Policy (Exs. 10-11). Provide supports its request with the declaration of Joshua Rabinovitz, Senior Manager for Special Programs at Provide. Mr. Rabinovitz manages the contractual marketing relationship with EMI. He states that he “captures” “screenshots” of Provide’s and EMI’s webpages in the course of his job duties. Rabinovitz Decl. ¶ 2. Specifically, he captures the current page whenever new versions are released to the public. Id. Mr. Rabinovitz crosschecked the records of the four named Plaintiffs’ orders with the versions of the webpages in effect and accessible on those dates. Id. ¶ 4. Similarly, Defendant EMI submitted five versions of EMI’s enrollment screen. Carson Decl. Ex. 1. Plaintiffs move to strike these exhibits. Fed.R.Civ.P. 12(f). EMI argues the Court can consider the documents under the incorporation by reference doctrine because the Complaint quotes language from the offer details and the “claim your gift code below” screen of the EASYSAVER Rewards sign up screen. Compl. ¶ 19. EMI’s exhibits are supported by the declaration of EMI’s Internet Marketing Director, Lee Carson, who states that the screen was in effect at the time Plaintiff Hunt enrolled in the EASYSAVER Rewards program in May 2009. Carson Decl. ¶ 2. He provided five versions of this screen because “the picture at the top of the screen automatically rotates through different images which generally set forth some of the membership benefits offered through the EASY-SAVER Rewards program.” Id. ¶ 3. The Court DENIES the request to take judicial" }, { "docid": "21730149", "title": "", "text": "judicial notice of geological surveys and existing land use maps); or other court documents, see, e.g., Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir.2000) (taking judicial notice of a filed complaint as a public record). Federal courts may “take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue.” U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992). III. ANALYSIS A. Plaintiffs Motion to Strike Defendant’s Declarations or, in the Alternative, Convert Defendant’s 12(b)(6) Motions to a Rule 56 Summary Judgment Motion; Defendants’ Requests for Judicial Notice Plaintiff moves to strike the declarations and exhibits attached to defendant and defendant-intervenor’s requests for judicial notice. Plaintiff claims these declarations and exhibits are “outside the scope of the limited analysis” permitted under Rule 12(b)(6). Doc. 38 at 1. Plaintiff is mistaken. In a rule 12(b)(6) Motion to Dismiss, matters of public record may be considered, including pleadings, orders, and other papers filed with the court or records of administrative bodies, see Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir.1986); see also Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994) (“[A] document is not ‘outside’ the complaint if the complaint specifically refers to the document and if its authenticity is not questioned.”). There are two exceptions to the general rule that consideration of extrinsic evidence converts a Rule 12(b)(6) motion to a summary judgment motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). First, a court may consider material that the plaintiff properly submitted as part of the complaint or, even if not physically attached to the complaint, material that is not questioned as inauthentic and that is necessarily relied upon by the plaintiffs complaint. Id. Second, under Federal Rule of Evidence 201, a court may-take judicial notice of matters of public record. Id. at 689. Some of the documents’ existence and authenticity at issue are not reasonably subject to dispute, e.g., Del Puerto’s Long Term Contract, dated June 10," }, { "docid": "11441596", "title": "", "text": "Exs. B, C; Adobe’s General Terms of Use, id. Ex. D; and the subscription terms for Adobe’s Creative Cloud, id. Ex. E. These documents are referenced and quoted in the Complaint, e.g., Compl. ¶¶ 5, 29, 30-32, 84, 91, 99, 119-120, 129, and the Court may therefore take judicial notice of these documents under the doctrine of incorporation by reference. See, e.g., Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (district court may consider \"documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading” (alteration in original) (internal quotation marks omitted)). Finally, Adobe requests that the Court take judicial notice of three newspaper articles discussing Adobe’s security problems. Def. July 2 RJN Exs. A, B, C. The Court may take judicial notice of the existence of these reports as indication of what was in the public realm, but not for the veracity of any arguments or facts contained within. See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.2010). Accordingly, the Court GRANTS Adobe’s Requests for Judicial Notice dated May 21, 2014 and July 2, 2014. Plaintiffs request that the Court take judicial notice of one of Adobe’s End User License Agreements (\"EULA”). Pl. RJN Ex. A. The EULA is referenced in the Complaint, see, e.g., Compl. ¶¶ 29-32, 41, 105, and is publicly available on Adobe’s website. Accordingly, the Court GRANTS Plaintiffs’ Request for Judicial Notice. See Knievel, 393 F.3d at 1076. . Adobe refers to Sections 1798.81.5 and 1798.82 as the \"California Data Breach Notification Act,\" see Mot. at 6, whereas Plaintiffs refer to those sections as the “California Customer Records Act,” see Opp’n at 6. The Court agrees with Plaintiffs that Section 1798.81.5 deals with more than notification in the event of a breach. See Cal. Civ. Code § 1798.81.5(d) (\"[T]he purpose of this section is to encourage businesses that own or license personal information about Californians to provide reasonable security for that information.”). Accordingly, the Court will refer to these sections as the Customer" }, { "docid": "11632281", "title": "", "text": "Philip Morris, Inc., 395 F.3d 1142, 1151 (9th Cir.2005) (quoting Fed.R.Evid. 201 advisory committee’s note). A district court cannot take judicial notice of a fact that is subject to “reasonable dispute” simply because it is contained within the public record. Lee, 250 F.3d at 689-90 (for example, court may take judicial notice of existence of court opinion, but not “ ‘the truth of the facts recited therein.’ ”) (citation omitted). 1. Notice of Violation Letter Defendant Provide attached a copy of a letter, dated September 24, 2009, in which Plaintiffs notified the Defendants of the alleged violation of California’s Consumer Legal Remedies Act. Norton Decl. Ex. A. Plaintiffs do not oppose the use of the letter. Provide titled its request as one for judicial notice, but the body of its brief argues that the notice letter can be considered because Plaintiffs rely on it in their Complaint. Provide Br. at 23. The Court construes Provide’s request as seeking to introduce the letter in this motion to dismiss by the incorporation by reference doctrine. The Complaint refers to this notice. Compl. ¶ 140. In addition, Plaintiffs attached the letter as a Exhibit B to their original complaint. Accordingly, the Court will consider the letter as being incorporated into the pleading. Silicon Graphics, 183 F.3d at 986. 2. Screen Shots of Web Pages Defendant Provide asks the Court to take judicial notice of eleven exhibits which are screen shots of webpages from the internet. Plaintiffs object to the exhibits. These exhibits include an EASYSAVER Rewards popup (or slider) window (Ex. 1), four versions of the EASYSAVER Rewards Policy (Exs. 2-5), four versions of EMI’s Enrollment page (Exs. 6-9); and two versions of Provide’s Privacy Policy (Exs. 10-11). Provide supports its request with the declaration of Joshua Rabinovitz, Senior Manager for Special Programs at Provide. Mr. Rabinovitz manages the contractual marketing relationship with EMI. He states that he “captures” “screenshots” of Provide’s and EMI’s webpages in the course of his job duties. Rabinovitz Decl. ¶ 2. Specifically, he captures the current page whenever new versions are released to the public. Id. Mr. Rabinovitz" }, { "docid": "15345737", "title": "", "text": "ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [Docket No. 48] JOSEPH C. SPERO, United States Magistrate Judge. I. INTRODUCTION Plaintiffs Patricia McNeary-Calloway, Colin MacKinnon, Terrie McKinnon, Andrea North, and Sheila M. Mayko (collectively “Plaintiffs”) initiated this putative class action on June 20, 2011, challenging Defendants JPMorgan Chase, N.A. and Chase Bank USA, N.A.’s (together “Defendants,” or “Chase”) practice of purchasing “force-placed” hazard insurance policies for home mortgage borrowers who fail to maintain adequate insurance. Defendants now bring a Motion to Dismiss Plaintiffs’ First Amended Complaint (“the Motion”). Plaintiffs oppose the Motion. The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Motion to Dismiss is GRANTED in part and DENIED in part. II. REQUESTS FOR JUDICIAL NOTICE Defendants request that the Court take judicial notice of three documents that are matters of public record. Request for Judicial Notice in Support of Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint (“Defs.’ RJN”), 1-2. Plaintiff has not objected to Defendant’s request or challenged the authenticity of any of the attached documents. Accordingly, the Court takes judicial notice of these records pursuant to Rule 201 of the Federal Rules of Evidence. Further, the Court may consider these documents, along with the allegations in Plaintiffs’ complaint, on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Catholic League for Religious and Civil Rights v. City and County of San Francisco, 464 F.Supp.2d 938, 941 (N.D.Cal.2006). Plaintiffs also request that the Court take judicial notice of three documents that are matters of public record. Plaintiffs’ Request for Judicial Notice (“Pis.’ RJN”). Defendants have not objected to Plaintiffs’ request or challenged the authenticity of any of the attached documents. Accordingly, the Court takes judicial notice of these records pursuant to Rule 201 of the Federal Rules of Evidence. III. BACKGROUND A. Factual Background Defendants JPMorgan Chase and Chase Bank originate mortgage loans and acquire loans from other lenders. Plaintiffs’ First Amended Complaint (“FAC”), ¶ 58. Prior to its merger into JPMorgan," }, { "docid": "20610607", "title": "", "text": "June 27, 2006 and recorded on June 30, 2006, in the Official Records of Santa Clara County, California (\"Deed of Trust”). (Request for Judicial Notice in Support of Motion to Dismiss, hereafter, \"RJN,” Ex. 2 at 2, Docket Item No. 22.) Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of facts that are not subject to reasonable dispute and “are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The Court also may take judicial notice of documents in the public record. W. Fed. Sav. & Loan Ass'n v. Heflin Corp., 797 F.Supp. 790, 792 (N.D.Cal. 1992) (taking judicial notice of documents in a county public record, including deeds of trust). In addition, the Court may consider documents referred to by the complaint if they are authentic and central to plaintiff's claim. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). Here, Plaintiffs’ Complaint references the Deed of Trust on several occasions. (See Complaint ¶¶ 48-51.) Since the Deed of Trust is not subject to reasonable dispute, a matter of public record, and referenced as a central part of Plaintiff's claims, the Court takes judicial notice of the Deed of Trust. . Plaintiff’s contention also stems from the service MERS provides with regards to mortgages. MERS is a national electronic registration and tracking system that tracks the beneficial ownership interests and servicing rights in mortgage loans. When a promissory note is sold by the original lender to others, the various sales of the notes are tracked by the MERS System. See In re Hawkins, No. BK-S-07-13593, 2009 WL 901766, at *1-2 (Bankr.D.Nev. Mar. 31, 2009). . See In re Hawkins, 2009 WL 901766, at *3 (holding that MERS does not have standing merely because it is the alleged beneficiary ... the mere fact that an entity is a named beneficiary of a deed of trust is insufficient to enforce the obligation). But cf. Elias v. HomeEQ Servicing, No. 2:08-CV-1836, 2009 WL 481270, at *1 (D.Nev. Feb. 25, 2009) (holding that MERS has standing to foreclose as a nominee" }, { "docid": "15938063", "title": "", "text": "that the court take judicial notice of the following documents: the trustee’s deed on sale for the Woodland Hills property, the Federal Stock Charter for Lehman Brothers Bank FSB, the Office of Thrift Supervision’s Order Approving Aurora Loan Services as an Operating Subsidiary of Lehman Brothers Bank, the Secretary’s Certificate attesting that Lehman Brothers Bank FSB changed its name to Aurora Bank FSB, a certification by the Delaware Secretary of the State authenticating the certificate of incorporation for Aurora Loan Services Inc., filed May 15, 1997, Aurora’s certificate of conversion from a corporation to an LLC, and a certificate of amendment changing Aurora’s Certificate of Formation to reflect its designation as a limited liability company. “Judicial notice is appropriate for records and ‘reports of administrative bodies.’” United States v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir.2008) (quoting Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1954)). The trustee’s deed on the sale of the Woodland Hills property is a document recorded by the Los Angeles County Recorder’s Office. Aurora has provided a reference number for the document, showing that it was in fact recorded; this demonstrates that it is a public record. See Fimbres v. Chapel Mortgage Corp., No. 09-CV-0886-IEG (POR), 2009 WL 4163332, *3 (S.D.Cal. Nov. 20, 2009) (taking judicial notice of a deed of trust, notice of default, notice of trustee’s sale, assignment of deed of trust, and substitution of trustee, as each was a public record); Maguca v. Aurora Loan Services, No. SACV 09-1086 JVS (ANx), 2009 WL 3467750, *2 n. 2 (C.D.Cal. Oct. 28, 2009) (“The Court takes judicial notice of the notice of default, as it is a public record”); Angulo v. Countrywide Home Loans, Inc., No. 1:09-CV-877-AWI-SMS, 2009 WL 3427179, *3 n. 3 (E.D.Cal. Oct. 26, 2009) (“The Deed of Trust and Notice of Default are matters of public record. As such, this court may consider these foreclosure documents”); Distor v. U.S. Bank NA, No. C 09-02086 SI, 2009 WL 3429700, *2 (N.D.Cal. Oct. 22, 2009) (finding that a" }, { "docid": "20296652", "title": "", "text": "can be obtained from the purchase of any Xbox 360 system. See, e.g., Mayfield v. Sara Lee Corp., 2005 WL 88965, at 3, n. 2 (N.D.Cal. Jan. 13, 2005) (“taking judicial notice of photocopies of various bread product packages displaying the Sara Lee brand”); Wright v. Gen. Mill, Inc., 2009 WL 3247148 at *5 (S.D.Cal. Sept. 30, 2009) (taking judicial notice of various labels and packaging associated with the Nature Valley products). Defendant further argues that the documents are easily verifiable, and that documents found on the Internet have been held to constitute public records subject to judicial notice. See, e.g., Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965-66 (C.D.Cal.2005) (taking judicial notice of admissions on a website associated with a witness as well as the contents of Amazon.com web pages describing books related to the case); but cf., e.g., Experian Info. Solutions, Inc. v. Lifelock, 633 F.Supp.2d 1104, 1107 (C.D.Cal.2009) (finding that Governor of Connecticut’s web-page was not judicially noticeable because material on website not capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned); Ruiz v. Gap, Inc., 540 F.Supp.2d 1121, 1124 (N.D.Cal.2008) (declining to take judicial notice of webpage containing list of reported identity theft breaches in California because materials “not remotely akin to the type of facts which may be appropriately judicially noticed.”). Here, the documents sought to be judicially noticed are capable of accurate and ready determination because they are standard documents. These documents are judicially noticeable for the fact that they exist, not whether, for example, the documents are valid or binding contracts. Plaintiff argues that several issues relating to these documents are in dispute. Although Plaintiff argues that there has been no showing that the documents cover the entire relevant market, Defendant has submitted a follow-up declaration from Patrick King attaching additional packaging information since 2005, which resolves this issue. See King Deck Ex. 1-4. Plaintiff also argues that the Terms of Use document is dated September 2008, so Defendant cannot argue that it was provided to all Xbox customers during the relevant period since 2005." }, { "docid": "15601165", "title": "", "text": "H: March 10, 2010 letter and supplemental materials from Plaintiff to DHS counsel; (9) Exhibit I: certification stamp affixed by the Clerk of the Superior Court of California for Alameda County. RJN, Exs. A-I, Dkt. Nos. 85-(l-24). Plaintiff objects to Defendants’ request. Dkt. No. 97. It appears, however, that Plaintiff does not contest the authenticity of the documents or their relevance, only Defendants’ characterization of them. Id. at 1. In the Agent Defendants’ Motion to Dismiss, they address “Facts for Judicial Notice,” in which they summarize many of the documents in their request. This, Plaintiff contends, is argument and not appropriate for judicial notice. Id. The Court may take judicial notice of matters that are either (1) generally known within the trial court’s territorial jurisdiction or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). However, “[a] court may not take judicial notice of one party’s opinion of how a matter of public record should be interpreted.” United States v. S. Cal. Edison Co., 300 F.Supp.2d 964, 974 (E.D.Cal.2004). Rather, the Court may only take judicial notice of the documents themselves. Proper subjects of judicial notice court documents already in the public record and documents filed in other courts. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006). Thus, courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992). Accordingly, the Court GRANTS Defendants’ request for judicial notice as to Exhibits A and B as they are public court documents. The Court may also take judicial notice of Exhibits C and D, as Plaintiff refers to the immigration detainers extensively in his SAC and proposed TAC. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003) (“Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint" }, { "docid": "11632280", "title": "", "text": "isolated statement from a document” in the complaint, when the complete document refutes the allegations. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997) (consideration of entire document made clear that isolated statement was not fraudulent); accord Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.1998) (applying rule to documents “critical to plaintiffs claims” to prevent “plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based.”). However, the rule is limited to a document “whose authenticity no party questions.” Branch, 14 F.3d at 453. Second, a Court may consider adjudicative facts that are subject to judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001); Fed. R.Evid. 201 (“A judicially noticed fact must be one not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”). Judicial notice is proper only when the matter is “ ‘beyond reasonable controversy.’ ” Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1151 (9th Cir.2005) (quoting Fed.R.Evid. 201 advisory committee’s note). A district court cannot take judicial notice of a fact that is subject to “reasonable dispute” simply because it is contained within the public record. Lee, 250 F.3d at 689-90 (for example, court may take judicial notice of existence of court opinion, but not “ ‘the truth of the facts recited therein.’ ”) (citation omitted). 1. Notice of Violation Letter Defendant Provide attached a copy of a letter, dated September 24, 2009, in which Plaintiffs notified the Defendants of the alleged violation of California’s Consumer Legal Remedies Act. Norton Decl. Ex. A. Plaintiffs do not oppose the use of the letter. Provide titled its request as one for judicial notice, but the body of its brief argues that the notice letter can be considered because Plaintiffs rely on it in their Complaint. Provide Br. at 23. The Court construes Provide’s request as seeking to introduce the letter in this motion to dismiss by the incorporation by reference doctrine. The Complaint" }, { "docid": "20058953", "title": "", "text": "the Riders, as they bear his signature. Id. Finally, the documents show time stamps identical to those reflected on the web page of the Clerk for the County of Alameda. Judicial notice of these documents is proper. Allen also objects to notice of a Purchase Assumption Agreement (“PAA”) between JP Morgan and the Federal Deposit Insurance Corporation (“FDIC”), RJN Ex. 7, which purports to limit the liability assumed by JP Morgan when it acquired certain rights and obligations of Washington Mutual. Opp’n to RJN ¶5. Allen correctly notes that several pages are missing — indeed, Defendants neglected to attach the most important pages of the PAA; i.e., those that contain the clauses that purport to limit JP Morgan’s liability. Nevertheless, the Court grants Defendants’ RJN because the entire PAA is available online, from the FDIC’s web site, as reflected in the memorandum attached to the RJN. RJN at 3; see also New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 702 n. 22 (10th Cir.2009) (taking judicial notice of data on web sites of federal agencies). B. First Cause of Action for Violations of the Truth in Lending Act (“TILA”) and the Home Ownership and Equity Protection Act (“HOEPA”) TILA and HOEPA impose certain disclosure obligations upon original lenders and their assignees. See 15 U.S.C. §§ 1640(a), 1641(a). Allen’s first cause of action alleges violations of both TILA and HOEPA “against all lenders.” Compl. at 6. Although Allen unambiguously alleges that United Financial Mortgage Corp. and Alliance Bancorp (neither of which have joined in this motion) served as lenders, he is “uncertain whether GMAC Mortgage [and] JP Morgan Chase Bank ... are assignees, transferees!,] servicers or subservicers of these loans.” Opp’n at 4-5. Allen claims that he is not in a position to identify the lenders with certainty at this time, and hopes to untangle these roles during the disclosure process which will take place under Rule 26 of the Federal Rules of Civil Procedure. Id. at 5. Given that the Court must read the Complaint in the light most favorable to Allen, and because neither MERS nor JP" } ]

[ { "docid": "23245398", "title": "", "text": "A careful search of the records fails to disclose any such stipulation. As to the evidence of yen shee, as we have stated, objection to its introduction was made by Fred Stein on the ground that it was incompetent, irrelevant and immaterial, bearing no relation to the crime charged in the indictment and on the further ground that it was obtained by an illegal search and seizure in violation of rights ac ■corded by the Fourth and Fifth Amendments. No motion to suppress the evidence was made at any time. However, the trial court passed on the merits of the objection and we are therefore required to do so. United States v. Di Re, 2 Cir., 159 F.2d 818. As to the relevancy and competency of the •evidence, here again we have the question of guilty knowledge and a course of conduct which tends to connect Fred Stein with the possession of the opium, yen shee, found in the house which he, an admitted •addict, had occupied. The weight to be accorded the evidence was for the jury. As to the alleged unlawful seizure, the bottle ■of yen shee was taken from the house under the joint ownership and control of Fred Stein and Margaret. The right of Margaret to enter the house cannot be seriously ■questioned; in fact, counsel for Fred Stein ■admitted at the trial that Fred and Margaret had the same right of possession and occupancy. Then the question is, could Margaret, having lawfully entered her home, by extending an invitation to the federal agents to enter thus make their entry lawful? 'We think she could and that she did. There is not the slightest intimation of any coercion being used in this case. Margaret freely and voluntarily extended the invitation to enter and these facts distinguish the instant case from the case of Amos v. United States, 255 U.S. 313, 314, 41 S.Ct. 266, 65 L.Ed. 654. The original entry and search being authorized evidence discovered during the search was properly seized and its admission into evidence was proper. Harris v. United States, 331 U.S. 145," } ]

[ { "docid": "797596", "title": "", "text": "production of documents, the existence of which became known by federal agents through an illegal search and seizure, nevertheless said that “ * * * this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, * * (251 U.S. at 392, 40 S.Ct. at 183.) (Emphasis supplied.) This independent-source theory has evolved to become a well-recognized exception to the general rule of inadmissibility of evidence obtained from an illegal search or seizure. In Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 149 F.2d 381, evidence relative to the first count which charged violation of the marijuana tax law was obtained in violation of defendant’s constitutional rights against un reasonable searches and seizures. However, while defendant was under illegal arrest he volunteered evidence which supported conviction on a second count. The Court in upholding the second count held that rejection was not required of the volunteered evidence which added nothing to self-incriminatory facts shown on the second count. In United States v. Giglio, 2 Cir., 1959, 263 F.2d 410, the Court held that where records lawfully obtained contained information from which further information was later obtained, there was no basis for suppression merely because the same information might also have been found in suppressed records. Similarly, in Burke v. United States, 1 Cir., 1964, 328 F.2d 399, cert. den. 379 U.S. 849, 85 S.Ct. 91, 13 L.Ed.2d 52 (1964), the trial court found that an illegal search had occurred but refused to suppress the evidence because the identical information which the search revealed was already known to the Government. The First Circuit in affirming the judgment of the district court said: “We agree that knowledge of information gained from an independent source does not become unusable merely because the same information is subsequently discovered during an illegal search,” citing Silverthorne, supra. And finally, in this Circuit, in Manuel v. United States, 5 Cir., 1966, 355 F.2d 344, we found no error in the district court’s refusal to suppress handwriting specimens which" }, { "docid": "4000163", "title": "", "text": "below the house of her married daughter. With the daughter’s generalized consent, police broke into appellant’s locked cabinet which they found in the garage and discovered certain items of stolen property. In holding the search unreasonable this court placed emphasis on the following facts: that the police knew or should have known that the cabinet did not belong to appellant’s daughter; that appellant paid some rent to her daughter; that prior to the search the daughter suggested that the agents contact her mother before opening the cabinet; and that the police were apparently conducting a warrantless exploratory search. Factual distinctions from the instant case are apparent without discussion. . On vigorous cross-examination Mrs. Egger explained her conduct before Hughes was arrested and even while he was in jail, on the basis that she was “literally scared” of him and was afraid to oppose his commands. At one point she stated “If I hadn’t acted that way, I would have been killed.” We certainly do not condone Mrs. Egger’s conduct. The record shows that she had a serious drinking problem and that she sometimes slept with Hughes. Our wonder at this relationship is enhanced by the series of sentimental letters, complete with lipstick marks, that she sent him in jail while he was awaiting trial. As to the letters and her conduct while Hughes was in jail, Mrs. Egger stated, “I didn’t know what friends he had that he might want to harm me.” Again she stated, “I was afraid of friends that he might have on the outside.” . Cf. Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958), cert. denied 357 U.S. 930, 78 S.Ct. 1375, 2 L.Ed.2d 1372 (1958). . E. G. Cunningham v. Heinze, 352 F.2d 1 (9th Cir. 1965); Reeves v. Warden, Maryland Penitentiary, 346 F.2d. 915 (4th Cir. 1965); Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955); United States v. Blok, 88 U.S.App.D.C. 326, 188 F.2d 1019 (1951). . Cf. Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958). See also Comment, Third Party Consent to Search and Seizure," }, { "docid": "4048358", "title": "", "text": "the motions to suppress are granted with reference to the evidence contained in the brown leather carrying case seized by agents on April 17, 1969 in the bedroom of defendant Webster. The motions to suppress are denied as to all the other evidence taken from such bedroom on that day which the government intends to offer in evidence at trials in either of these two cases. Counsel are directed to prepare and submit an appropriate order. . On February 14, 1969, Webster was found not guilty by a jury in that case. Subsequently, the indictment was dismissed as to Frazier. . The other defendants in No. 28593 have joined in the motion filed in that case. . No claim has been made that the arrest was illegal. . In discussing the pre-Chimel law in Shipley v. California, supra, the Supreme Court said the following in its per curiam opinion (395 U.S. at 820, 89 S.Ct. at 2054): “At the very most, police officers have been permitted to search a four-room apartment in which the arrest took place. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.” . As the government does not seek to use as evidence anything contained in the green valise, it is not necessary to decide if the agents had the right to zip open this suitcase and seize its contents. . No other weapon was in fact found. . In Von Cleef, petitioner was arrested on the third floor of a 16-room house. A warrantless search was undertaken by several policemen for about three hours and several thousand papers, publications and other items were seized. . Where the arrest is only a sham or a front being used as an excuse for making a search, the arrest itself and the ensuing search are illegal. Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961)." }, { "docid": "3454229", "title": "", "text": "of Cecil Reese to seize the 1946 Plymouth which carried the whiskey. On the way they passed the home of Charles Weathersbee, Reese’s son-in-law, and in Weathersbee’s front yard they saw the 1956 Ford. The officers stopped and one of them entered the yard, identified himself, and announced that he was seizing the Ford because it had been used to violate the Internal Revenue Laws. The officers had no search warrant. Certain facts surrounding this seizure are remarkably similar to those in United States v. One 1956 Ford Tudor Sedan, 4 Cir., 1958, 253 F.2d 725, 727, where the automobile was seized over two months after the violation of the revenue laws, and there also the officers acted without a warrant. In answer to the contention that condemnation proceedings could not be maintained, Judge Hayns-worth, speaking for this Court, said: “Legal infirmities in the seizure do not impair the right of the United States to condemn or clothe the former owner with property and pos-sessory rights he lost when he used the property in violation of the revenue laws. Considerations which, in criminal cases, require the suppression of evidence obtained in an unlawful search and seizure have no application here.” This holding is in line with the Supreme Court’s decisions in Trupiano v. United States, 1948, 334 U.S. 699, 710, 68 S.Ct. 1229, 92 L.Ed. 1663, and United States v. Jeffers, 1951, 342 U.S. 48, 54, 72 S.Ct. 93, 96 L.Ed. 59, that while property seized as a result of an illegal search and seizure could not be introduced as evidence in the criminal prosecution of its owner, it was still contraband and the owner was not entitled to have it returned to him. In Welsh v. United States, 1955, 95 U.S.App.D.C. 93, 220 F.2d 200, the Court of Appeals for the District of Columbia Circuit, citing Trupiano and Jeffers, likewise held that illegally seized property need not be returned to the owner when it is contraband or forfeitable. The appellants argue, however, that in this case the rule should be held inapplicable. They say that the premises of an" }, { "docid": "14269998", "title": "", "text": "he failed to arrest. D.C.Code § 4-143. Upon the officer’s inquiry, appellant stated he was carrying a weapon. When the officer halted appellant from reaching for it and looked for himself, he discovered the narcotics. Neither appellant’s illegal behavior nor his reaction when asked about weapons is in any way attributable to the officer. A defendant is not foreclosed from questioning the motives behind a legal arrest which leads to the discovery of evidence of other crimes. Notwithstanding such statutes as D.C.Code § 4-143, police exercise substantial discretion in arresting persons for commission of minor offenses such as drinking in public When a minor misdemeanor statute is enforced only as a gamble for detecting a larger crime, this discretion is abused. To discourage such gambles, the evidence thus obtained is excluded. Thus in McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977 (1950), the defendant was legally arrested for lottery violations. However, the police “purposely refrained from arresting him in the street,” as they might have, so as to be able to conduct a search of the premises they expected to enter. The fruits of this search were excluded. In White v United States, 106 U.S.App.D.C. 246, 271 F.2d 829 (1959), defendant was arrested in New York for vagrancy and the police used the occasion, as they conceded to be their practice, to search for narcotics. We assumed the legality of the arrest, but excluded the evidence obtained there because the “search * * * in truth was not incidental to an arrest, but * * in fact the arrest was incidental to [the] search.” (Id. 106 U.S.App.D.C. at 248, 271 F.2d at 831.) See also Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961). Although the present case is close on the sham arrest issue, the record does not justify reversal. Much of the force of the contention that appellant’s arrest was “merely” for drinking in public would have been destroyed had it been clearly established that other men in the alley were drinking. It would appear that defense counsel was aware of this, yet the officer," }, { "docid": "16871343", "title": "", "text": "implying that they had a search warrant. In Gatewood v. United States we held illegal an entry by an officer who thought a bench warrant was outstanding whereas in fact it had been executed. We think that under the authorities officers without a warrant cannot enter, even without actually breaking, a private dwelling to search for a suspected felon, no permission being given and no circumstances of necessitous haste being present. It is significant that in the Harris case, supra, the Supreme Court took the trouble to note: “This is not a case in which law enforcement officials have invaded a private dwelling without authority ,and seized evidence of crime.” The case before us is precisely a case in which law enforcement officers invaded a private dwelling without authority and seized evidence of crime. The judgment of the District Court must be reversed and Morrison awarded a new trial. Reversed. WILBUR K. MILLER, Circuit Judge, dissents. . A violation of Sections 103 and 104, Title I, of an Act of June 9, 1948,- 62 Stat. 347,' D.C.Code §§ 22-3501, 22-3502 (1951). . 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399 (1947). . 285 U.S. 452, 464-465, 52 S.Ct. 420, 423, 76 L.Ed. 877 (3932). . 255 U.S. 298, 309-311, 41 S.Ct. 261, 265, 65 L.Ed. 647 (1921). . Supra note 3. . Numerous cases validate tlie seizure of mere evidence from the person of one who has been legally arrested, but obviously those cases are not applicable here. E. g., Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 343, 344, 58 L.Ed. 652 (1914); United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (2d Cir. 1926), and cases there cited. In our Morton v. United States, 79 U.S.App.D.C. 329, 347 F.2d 28 (1945), certiorari denied 324 U.S. 875, 65 S.Ct. 1015, 89 L.Ed. 1428 (1945), the evidence was seized as an incident to the arrest, and the opinion appears to be in conflict with Lefkowitz but is sustainable upon the authorities cited, there having been no timely motion to suppress. In Ellison v." }, { "docid": "22978733", "title": "", "text": "266, 80 S.Ct. 725, 733 (1960). But this is not a case of property right distinctions. The defense concedes that Mrs. Maxwell possessed a proprietary interest in the house; that Maxwell himself only shared a room there with his two younger brothers; and that no landlord-tenant relationship existed between Maxwell and his parents. Mrs. Maxwell had control of the premises, undiminished by any kind of a less-than-fee interest possessed by Maxwell. This fact stands in contrast to the hotel or rental situations. See Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Klee v. United States, 53 F.2d 58 (9 Cir. 1931). The situation strikes us as being no different, factually, than if Mrs. Maxwell herself had brought the coat, it being properly in her possession, to the authorities. They came to the home, it is true, but they obtained the coat by freely allowed access to the house, by freely given directions as to its location, and by freely permitted acquisition of it by the officers and departure with it in their hands. Roberts v. United States, supra, 332 F.2d 892, 896-897 (8 Cir. 1964); Burge v. United States, 342 F.2d 408, 413-414 (9 Cir. 1965); Rees v. Peyton, 341 F.2d 859, 861-863 (4 Cir. 1965); United States v. Guido, 251 F.2d 1, 3-4 (7 Cir. 1958), cert. denied 356 U. S. 950, 78 S.Ct. 915, 2 L.Ed.2d 843; Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958), cert. denied 357 U.S. 930, 78 S.Ct. 1375, 2 L.Ed. 2d 1372; Fredricksen v. United States, 105 U.S.App.D.C. 262, 263, 266 F.2d 463, 464 (1959); Morales v. United States, 344 F.2d 846 (9 Cir. 1965); United States ex rel. McKenna v. Myers, 232 F.Supp. 65, 66 (E.D.Pa.1964)." }, { "docid": "12606671", "title": "", "text": "federal grand jury on fourteen counts of federal weapons violations as a result of the firearms and explosives found inside his van. Following a jury trial, Tate was convicted on all fourteen counts of the indictment. II. Appellant argues that the district court erred in overruling his motion to suppress evidence of the firearms taken from his van without a search warrant. Tate first argues that the warrantless search was illegal under Missouri law, MO.REV.STAT. § 43.200 (1986), which limits the warrant-less search and seizure power of a member of the state highway patrol except when incident to an arrest. Tate argues that because no arrest was made in connection with the search of the van, the search was conducted in direct contravention of state law and the evidence should therefore have been suppressed. Appellant’s reliance on state law is unfounded. In a federal prosecution, the legality of a search and seizure is not determined by reference to a state statute, but rather is resolved by fourth amendment analysis. Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967). In United States v. Ross, 713 F.2d 389, 393 n. 7 (8th Cir.1983), this court held that the question “[wjhether evidence obtained by state officers and used against a defendant in a federal trial was obtained by an unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.” Moreover, in United States v. Eng, 753 F.2d 683, 686 (8th Cir.1985), this court held that a search and seizure in violation of MO.REV.STAT. § 43.200, the statute at issue here, did not require the exclusion of the evidence seized. Applying constitutional analysis, the district court in the instant case rejected appellant’s allegations of fourth amendment violations stating that appellant had abandoned his expectation of privacy in the van and its contents when he fled from the scene of the shootings leaving the van on a public highway with the windows down and the doors unlocked. Before a party can claim the protections of the fourth amendment, he" }, { "docid": "23608103", "title": "", "text": "the nature of Wise’s use, or, rather nonuse of that part, and the failure of Ford, whose broad authority the government vouches for in another connection, to object over a period of time, would seem to show at least an un-revoked license to enter Wise’s portion of the building. . The facts in McDonald may be briefly stated. There, government officers, trespassing on the landlord’s premises, looked over a transom into the room of the defendant, who was a tenant. Seeing the defendant apparently engaged in illegal gambling operations, they entered and arrested him, and then seized the gambling instrumentalities, which were in plain view. Finding that the officers had long had probable cause to obtain a warrant, and concluding that they had failed to do so merely to avoid the inconvenience, the Court ordered the evidence suppressed. If it felt that McDonald was a different case from Trupiano in that in McDonald the officers lacked the landlord’s voluntary consent, the Court did not advert thereto. And see Stoner v. State of California, supra, and Chapman v. United States, supra. . The first two matters listed by the Court in Rabinowitz demonstrate the distinction. “(1) [T]he search and seizure were incident to a valid arrest,” the arrest itself being predicated upon a warrant. See Wong Sun v. United States, 1963, 371 U.S. 471, 480 n. 8, 83 S.Ct. 407, 9 L.Ed.2d 441. This meant that at least some independent determination of probable cause had been made.by a magistrate. “(2) [T]he place of the search was a business room to which the public, including the officers, was invited.” 339 U.S. at 64, 70 S.Ct. at 434. . For expressions of similar opinion, see, e.g., Clay v. United States, 5 Cir., 1956, 239 F.2d 196, 204; Smith v. United States, 1958, 103 U.S.App.D.C. 48, 254 F.2d 751, 766-767 (Bazelon, X, dissenting), cert, denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552. See also Arwine v. Bannan, 6 Cir., 1965, 346 F.2d 458, 465-467, cert, denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed.2d 123." }, { "docid": "17224820", "title": "", "text": "500 (1933). . Cutting v. United States, 169 F.2d 951, 12 Alaska 143 (9th Cir. 1948). See also, Von Eichelberger v. United States, 252 F.2d 184 (9th Cir. 1958); Reszutek v. United States, 147 F.2d 142 (2d Cir. 1945). . The recent case of Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), is not apposite on the facts. Its holding that search of a hotel room several hours after a guest had vacated it was reasonable, where made with the consent of the hotel manager, appears to be consistent with the notion that possession and control is the touchstone in determining validity of consent. . Cf. Chapman v. United States, 365 U.S. 630, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). . Cf. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). BOREMAN, Circuit Judge (dissenting). Preliminarily, of course, I agree with the holding of the majority that Eldridge had “standing” to seek suppression of the seized evidence under Rule 41(e), Federal Rules of Criminal Procedure. I do not agree with the conclusion that the Rule 41(e) motion to suppress the seized evidence was properly denied. Like my brethren, I begin with the premise that the Fourth Amendment prohibits only unreasonable searches and seizures. It is well recognized, however, that, as a general rule, whether there is reasonable ground for the search is to be determined prior thereto by an impartial official authorized to issue warrants, not by a police officer who may be overzealous in the performance of his law enforcement duties. Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (dictum); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932), A search is unreasonable within the meaning of the Fourth Amendment unless (1) authorized by a valid search warrant, (2) incident to a valid arrest," }, { "docid": "3858030", "title": "", "text": "judgment of the District Court is affirmed. . We have considered whether police guile in displaying the rifle as belonging to appellant’s mother rendered his admission involuntary and have concluded in the negative. McCREE, Circuit Judge (dissenting). I respectfully dissent. The principal issue presented on appeal was whether the district court should have granted a second suppression hearing to permit consideration of appellant’s second motion to suppress. In the second motion, which presented grounds not asserted in the first motion, appellant sought to suppress not only a rifle claimed to have been illegally seized, but also his oral statement elicited by the police when they confronted him with the seized weapon. The majority opinion holds that the seizure of the rifle, which was not claimed to be either contraband or evidence of a crime, was justified by the officers’ concern for their safety. The facts presented in the record on appeal are insufficient to support this conclusion. I agree that the searching officers had a right to search the room in which the rifle was found, because the warrant authorized the search of the entire premises for marijuana. And even if the warrant had not authorized the search of this room, the officers, under special circumstances, might have been justified in making a cursory survey of the entire premises in order to ensure their safety. See United States v. Sellers, 520 F.2d 1281 (4th Cir. 1975), judgment vacated on other grounds, 424 U.S. 961 (1976); United States v. Blake, 484 F.2d 50 (8th Cir. 1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974); United States v. Looney, 481 F.2d 31 (5th Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 476 (1973). But see United States v. Carter, 173 U.S.App.D.C. 54, 522 F.2d 666 (1975); United States v. Gamble, 473 F.2d 1274 (7th Cir. 1973) (both finding searches of premises illegal despite a claim that such a search was necessary to protect the officers’ safety when they entered with only a warrant for an arrest). An object in plain view, but not mentioned in" }, { "docid": "17224819", "title": "", "text": "See generally Anno., 31 A.L.R.2d 1071, 1078-96 (1953). . United States v. Sferas, 210 F.2d 69, 74 (7th Cir. 1954) ; United States v. Goodman, 190 F.Supp. 847, 850 (N.D.Ill. 1961). . United States v. Antonelli Fireworks Co., 155 F.2d 631, 636 (2d Cir. 1946); cf. United States v. Maryland Baking Co., 81 F.Supp. 560 (N.D.Ga.1948). . Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959); cf. Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958). . Stein v. United States, 166 F.2d 851, 855 (9th Cir. 1948); United States v. Pugliese, 153 F.2d 497, 499 (2d. Cir. 1945) (dictum); Driskill v. United States, 281 F. 146 (9th Cir. 1922); United States v. Sergio, 21 F.Supp. 553 (E.D.N.Y.1937); but see, Cofer v. United States, 37 F.2d 677, 679 (5th Cir. 1930). The Supreme Court, in Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), expressly left this question open. For an interesting discussion of the early cases, see Cass v. State, 124 Tex.Cr.R. 208, 61 S.W.2d 500 (1933). . Cutting v. United States, 169 F.2d 951, 12 Alaska 143 (9th Cir. 1948). See also, Von Eichelberger v. United States, 252 F.2d 184 (9th Cir. 1958); Reszutek v. United States, 147 F.2d 142 (2d Cir. 1945). . The recent case of Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), is not apposite on the facts. Its holding that search of a hotel room several hours after a guest had vacated it was reasonable, where made with the consent of the hotel manager, appears to be consistent with the notion that possession and control is the touchstone in determining validity of consent. . Cf. Chapman v. United States, 365 U.S. 630, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). . Cf. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). BOREMAN, Circuit Judge (dissenting). Preliminarily, of course, I agree with the holding of the majority that Eldridge" }, { "docid": "2695856", "title": "", "text": "(citing Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920)) and United States v. Bacall, 443 F.2d 1050 (9th Cir.1971)). The case was remanded to the district court to determine whether observations made during the illegal entry were a substantial factor in the ultimate decision to seek a warrant. 600 F.2d at 1306. The district court found that the warrant was not based upon unlawfully acquired information and denied Allard’s suppression motion. He appealed once again. A different panel ruled that the entry and occupancy of the hotel room was not only an illegal search but an illegal seizure for which the “independent source” requirement offered inadequate protection of fourth amendment rights. The distinction between searches and seizures in this instance is more than mere semantics. Our holding in Allard II was not limited to warrantless entries, but di rected also at police attempts to maintain the status quo by exercising control over a place while seeking a search warrant. 634 F.2d at 1186-87. The opinion concluded: Accordingly, we hold that where a defendant establishes that the government illegally ‘secured’ and thereby seized evidence, and that seizure continues while the government procures a search warrant, the defendant has demonstrated a sufficient nexus between the illegality and the subsequently seized evidence notwithstanding any ‘independent source’ supporting the warrant. Upon establishing this nexus, the burden shifts to the government to demonstrate that it would have both independently discovered and successfully obtained the proffered evidence notwithstanding the illegal seizure. Id. at 1187. Given the thrust of the Allard II rationale, we cannot fairly distinguish that case from the one before us. Though the officers here exercised control over a hotel room by locking the door rather than waiting inside and decided to seek a warrant before they entered the room rather than afterward, these differences are not legally significant. The trial court believed that the federal agents acted properly in securing the room and so did" }, { "docid": "22978734", "title": "", "text": "Mrs. Maxwell herself had brought the coat, it being properly in her possession, to the authorities. They came to the home, it is true, but they obtained the coat by freely allowed access to the house, by freely given directions as to its location, and by freely permitted acquisition of it by the officers and departure with it in their hands. Roberts v. United States, supra, 332 F.2d 892, 896-897 (8 Cir. 1964); Burge v. United States, 342 F.2d 408, 413-414 (9 Cir. 1965); Rees v. Peyton, 341 F.2d 859, 861-863 (4 Cir. 1965); United States v. Guido, 251 F.2d 1, 3-4 (7 Cir. 1958), cert. denied 356 U. S. 950, 78 S.Ct. 915, 2 L.Ed.2d 843; Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958), cert. denied 357 U.S. 930, 78 S.Ct. 1375, 2 L.Ed. 2d 1372; Fredricksen v. United States, 105 U.S.App.D.C. 262, 263, 266 F.2d 463, 464 (1959); Morales v. United States, 344 F.2d 846 (9 Cir. 1965); United States ex rel. McKenna v. Myers, 232 F.Supp. 65, 66 (E.D.Pa.1964). See United States ex rel. Puntari v. Maroney, 220 F.Supp. 801, 805-806 (W.D.Pa. 1963); Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769 (1923); Irvin v. State, Fla., 66 So.2d 288, 293 (1953), cert. denied 346 U.S. 927, 74 S.Ct. 316, 98 L.Ed. 419. But the defense argues that this coat was Maxwell’s personal effect and clothing; that it could not be picked up or acquired in any manner, even with a valid search warrant, without his consent ; and that it was evidentiary material not the proper subject of a search. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921) and Holzhey v. United States, 223 F.2d 823 (5 Cir. 1955) are particularly cited. Whatever force might otherwise lie in the facts that the coat was clothing personal to Maxwell (and thus presumably an “effect” within the meaning of the Fourth Amendment), that it was not contraband or an article the possession of which is illegal, or an instrumentality or fruit of the crime, or capable of possible use" }, { "docid": "14767044", "title": "", "text": "license number and the owner’s manual off the car therein. Thereafter they obtained a search warrant, entered the garage and took photographs and other evidence. This court affirmed the District Court’s holding suppressing the license number and owner’s manual but allowing introduction of the evidence seized pursuant to the warrant. Thus the crucial difference between the legal and the illegal seizure, this court found, was the warrant. Yet today this court approves the seizure of evidence without warrant un der precisely the circumstances so graphically disapproved in James. With due deference, how the majority can uphold the seizure in this case in the face of Vale, Taylor and James is beyond me. II Peeping such as we have in this case into private buildings to see that which the occupant has chosen not to expose to public view is a search, and its lawfulness must be measured against the protective standards of the Fourth Amendment. Katz v. United States, supra; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); State of Texas v. Gonzales, 5 Cir., 388 F.2d 145, 147 (1968); People of State of California v. Hurst, 9 Cir., 325 F.2d 891, 898 (1963), reversed on other grounds, 381 U.S. 760, 85 S.Ct. 1796, 14 L.Ed.2d 713 (1965); Brock v. United States, 5 Cir., 223 F.2d 681, 685 (1955); see Whitley v. United States, 99 U.S.App.D.C. 159, 237 F.2d 787 (1956). Evidence of what was seen in this search is as much subject to suppression as the things would be if they had been physically seized. Katz v. United States, supra; McDonald v. United States, supra; Williams v. United States, 105 U.S.App.D.C. 41, 263 F.2d 487 (1959); Cohen v. Superior Court, 5 Cal.App.3d 429, 85 Cal.Rptr. 354 (1970); State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970); Ashby v. State, Fla.App., 228 So.2d 400 (1969). Ash-by is remarkably similar to the instant case, in that the police gained knowledge of the appellant’s possession of stolen property “by looking through a crack in the garage door.” 228 So.2d at 402. The court, relying substantially" }, { "docid": "4000164", "title": "", "text": "a serious drinking problem and that she sometimes slept with Hughes. Our wonder at this relationship is enhanced by the series of sentimental letters, complete with lipstick marks, that she sent him in jail while he was awaiting trial. As to the letters and her conduct while Hughes was in jail, Mrs. Egger stated, “I didn’t know what friends he had that he might want to harm me.” Again she stated, “I was afraid of friends that he might have on the outside.” . Cf. Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958), cert. denied 357 U.S. 930, 78 S.Ct. 1375, 2 L.Ed.2d 1372 (1958). . E. G. Cunningham v. Heinze, 352 F.2d 1 (9th Cir. 1965); Reeves v. Warden, Maryland Penitentiary, 346 F.2d. 915 (4th Cir. 1965); Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955); United States v. Blok, 88 U.S.App.D.C. 326, 188 F.2d 1019 (1951). . Cf. Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958). See also Comment, Third Party Consent to Search and Seizure, 33 U.Chi.L.Rev. 797, 811-12 (1966) and nn. 77, 79; Note 79 Harv.L.Rev. 1513, 1519 (1966). . Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). . Burge v. United States, 342 F.2d 408, 413 (9th Cir. 1965). . Because we have determined that no unreasonable search transpired, we do not discuss the government’s contention that appellants had no standing to contest the search. . See United States v. Blackburn, 389 F.2d 93, 97 (6th Cir. 1968); Rodriguez v. United States, 284 F.2d 863, 867 (5th Cir. 1960); United States v. McCartney, 264 F.2d 628, 631 (7th Cir. 1959); United States v. Wall, 225 F.2d 904, 907 (7th Cir. 1955); cf. Weiss v. United States, 122 F.2d 675 (5th Cir. 1941) cert. den. 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed.2d 550; C. Wright, Federal Practice & Procedure § 410 (1969). . United States v. Buccifferro, 274 F.2d 540, 542 (7th Cir. 1960). . Id. at 542, citing United States v. Crowe, 188 F.2d 209, 212 (7 Cir.); United States v. Carter," }, { "docid": "17224818", "title": "", "text": "suggestion that Nethercott obtained possession of the car with any deceptive purpose against Eldridge or in collusion with the officers. Conscious of our duty to maintain jealously the constitutional standards of the Fourth Amendment in criminal prosecutions, and to be on guard against the excesses of overzealous officers, we nevertheless must recognize that some searches may be so eminently reasonable as not to fall under the interdict of the Amendment. Upon consideration of the circumstances we conclude that the bailee’s consent made this a reasonable search. In light of this conclusion we do not reach such questions as whether the officers had adequate grounds for a lawful search apart from the bailee’s consent, or whether an unexecuted warrant may have the potency to vitalize an otherwise illegal search. Nor do we reach Eldridge’s further contention that the confession given by him to the federal authorities was excludable as the “fruit” of an illegal search and seizure. Affirmed. . See United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951). . See generally Anno., 31 A.L.R.2d 1071, 1078-96 (1953). . United States v. Sferas, 210 F.2d 69, 74 (7th Cir. 1954) ; United States v. Goodman, 190 F.Supp. 847, 850 (N.D.Ill. 1961). . United States v. Antonelli Fireworks Co., 155 F.2d 631, 636 (2d Cir. 1946); cf. United States v. Maryland Baking Co., 81 F.Supp. 560 (N.D.Ga.1948). . Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959); cf. Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958). . Stein v. United States, 166 F.2d 851, 855 (9th Cir. 1948); United States v. Pugliese, 153 F.2d 497, 499 (2d. Cir. 1945) (dictum); Driskill v. United States, 281 F. 146 (9th Cir. 1922); United States v. Sergio, 21 F.Supp. 553 (E.D.N.Y.1937); but see, Cofer v. United States, 37 F.2d 677, 679 (5th Cir. 1930). The Supreme Court, in Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), expressly left this question open. For an interesting discussion of the early cases, see Cass v. State, 124 Tex.Cr.R. 208, 61 S.W.2d" }, { "docid": "13574020", "title": "", "text": "Three. “The Court erred in overruling Appellant’s Motion to Quash Search Warrant, issued in this case, which search warrant was issued upon information and belief and based upon an exploratory and illegal search made theretofore.” The Government insists that the appellant has no standing to complain of any alleged illegal search because he denied ownership of the marihuana and failed to prove ownership of or interest in the premises searched, citing Scoggins v. United States, 1953, 92 U.S.App.D.C. 29, 202 F.2d 211, and Calhoun v. United States, 5 Cir., 1949, 172 F.2d 457. We do not agree. In the form in which Agent Finley testified to appellant’s disclaimer of the marihuana, “I am not going to claim it, but I am lying,” the jury could have inferred just the opposite. Moreover, there was affirmative testimony that appellant operated the business conducted on the premises, which was not denied, and no evidence was offered to the contrary. Possession of the premises searched, without reference to an interest in the property seized, gave the requisite standing to raise the issue as to admissibility of evidence resulting from an alleged illegal search. United States v. Pepe, 2 Cir., 1957, 247 F.2d 838, 841; Work v. United States, 1957, 100 U.S.App.D.C. 237, 243 F.2d 660, 662; United States v. Fowler, D.C. S.D.Cal.1955, 17 F.R.D. 499, 502. Neither of the cases cited by the Government holds to the contrary. The Government further insists that appellant waived any complaint of illegality of either search by failure, before the trial, to move for a return of the property or to suppress the evidence as required by Rule 41(e), Federal Rules of Criminal Procedure: “(e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property" }, { "docid": "23146852", "title": "", "text": "ordered. . Appellants raise contentions in addition to those treated in detail in this opinion: As to Williams it is claimed: (a) That there was no probable cause for his arrest. We find that there was probable cause. An informer, stated to be reliable in the past, gave a statement implicating Williams. The statement was corroborated by several known facts about the robbery. (b) That bis arrest was illegal because the police officers who arrested him failed to obtain a warrant for his arrest. This is a claim that requires an evidentiary predicate. Since this point was not raised at trial, it is not being considered on this appeal. (c) That there was improper advocacy by the prosecutor in summation. We have examined the record and do not find reversible error. As to Coleman there are additional claims: (a) That the failure to present him to a magistrate resulted in bis unknowing waiver of a preliminary hearing. There was no timely objection to the lack of a preliminary hearing, and in any case there was no prejudice because the entire Government case was known to Coleman after the first trial ended in a mistrial. (b) That his lineup in Baltimore was held in violation of Mallory. Apart from the discussion in the opinion on the claim made by Williams, Coleman has a disability in making a Mallory claim, in view of the fact that he was in custody in Baltimore, on a state charge, when Mrs. Neal was taken to view him in a lineup. Only afterward was he arrested on the federal charge and then promptly arraigned. . Kennedy v. United States, 122 U.S.App. D.C. 291, 353 F.2d 462 (1965); Williams v. United States, 120 U.S.App.D.C. 244, 247, 345 F.2d 733, 736 (1965) (concurring opinion of Judge Burger), cert. denied, 386 U.S. 1010, 87 S.Ct. 1354, 18 L.Ed.2d 438 (1967); Copeland v. United States, 120 U.S.App.D.C. 5, 343 F.2d 287 (1964); Mitchell v. United States, 114 U.S.App.D.C. 353, 357 n. 9, 316 F.2d 354, 358 n. 9 (1963); Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959)." }, { "docid": "5774840", "title": "", "text": "suitcase when they discovered it in the garage because: (1) they were lawfully positioned when they discovered it; (2) they had probable cause to believe it contained high explosives or dangerous weapons; (3) the explosives and weapons for which they searched presented an overriding, imminent threat of massive physical violence to the neighboring community. . See cases cited in footnote 34, supra, as well as those cited in Part II of the text of this opinion, at pages 276-277. . See text of this opinion accompanying footnote 30, supra. Other courts have repeatedly recognized that a legitimate warrantless entry of a defendant’s premises by government agents diminishes the defendant’s privacy interest. Lewis v. United States, 385 U.S. 206, 210-211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) (Fourth Amendment not violated by warrant-less entry by undercover agent at defendant’s invitation); United States v. Glassel, 488 F.2d 143, 145 (9th Cir., 1973) (Similar to Lewis, supra, where seizure of contraband in plain view of the undercover agent was validated); United States v. Berrett, 513 F.2d 154, 155-156 (1st Cir., 1975) (knowledge of stolen calculators observed by officers on the defendant’s business premises pursuant to “public invitation” used to obtain a warrant); United States v. Romano, 388 F.Supp. 101, 104-105 (E.D.Pa., 1975) (“Not every object near or attached to a dwelling is entitled to Fourth Amendment protection.”); United States v. Herndon, 390 F.Supp. 1017, 1021 (S.D.Fla., 1975) (Warrant-less search of house and bam by county officers who entered the premises with probable cause to believe a shooting occurred was valid under the exigent circumstances of searching for a possible victim and therefore federal agents, notified by the county officers of the existence of an illegal still observed on the property, could seize it without a warrant during a second search.); United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976) (A person who stands in the open doorway leading to the vestibule of a house is located in a “public place”); Contrast, United States v. Carriger, 541 F.2d 545, 549-550 (6th Cir., 1976) (Holding that the Katz" } ]

[ { "docid": "6329670", "title": "", "text": "from the settlement of the class action. On June 27, 1991 the courts issued an amended memorandum, order and final judgment. It approved the settlement, made permanent the prior stay of proceedings against the Trust and reaffirmed the prior injunction issued by the Bankruptcy Court restricting suits against the Manville Corporation. The settlement established a complex Trust Distribution Process intended to ensure solvency of the Trust and equitable distribution of its assets, including the division of asbestos health claimants into serious and less serious conditions and a procedure for channelling claims out of the courts. The appeal from this settlement was argued in the court of appeals on February 24, 1992. On December 4, 1992 the court of appeals issued an opinion vacating the settlement and remanding the case for further proceedings. In re Joint E. & S. Dists. Asbestos Litig., 982 F.2d 721 (2d Cir.1992). The court’s chief objection was that subclasses were not created to represent the interests of the various categories of claimants against the Trust. Id. at 734-45. The court of appeals issued a second opinion in May 1993 clarifying its first by stating that the court did not intend to hold that separate subclasses are required to represent those at the front and the back of the Trust’s first-in-first-out (FIFO) processing queue. In re Findley, 993 F.2d 7 (2d Cir.1993). While the court of appeals vacated the class action settlement, its first opinion denied the petition for mandamus and affirmed the Rule 706 appointment. The court first noted that the Rule 706 order was entered in both a class action and a bankruptcy context. It stated, Wholly apart from the authority of the District Court to appoint Rule 706 experts in connection with determining the fairness of the Settlement of the class action, we have no doubt of the Court’s authority to exercise its bankruptcy court powers to appoint experts to advise it on matters that concern the ongoing administration , of the Chapter 11 proceeding. Thus, we need not pause to consider the objectors’ contentions that the April 22 order is invalid as allegedly" } ]

[ { "docid": "11433093", "title": "", "text": "Dist. Asbestos Litig. (In re Johns-Manville Corp.), Bankruptcy Nos. 82 B 11656(BRL) to 82 B 11676(BRL), 1990 WL 115772 (E.D.N.Y. July 16, 1990) (explaining need for stay); Findley v. Blinken (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 129 B.R. 710 (E.D.N.Y.1991) (history of asbestos, diseases, knowledge, bankruptcy, Trust operations; class action to modify Trust operations; approval of settlement), rev’d, 982 F.2d 721 (2d Cir.1992), modified, 993 F.2d 7 (2d Cir.1993); Findley v. Blinken (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp), Nos. 82 B 11656(BRL) to 82 B 11264(BRL), 1992 WL 364271 (E.D.N.Y. Dec. 7, 1992) (stay of payments); Findley v. Blinken (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Mansville Corp.), 830 F.Supp. 686 (E.D.N.Y.1993) (appointment of panel under Rule 706 of Federal Rules of Evidence to estimate future claims); Findley v. Blinken (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 151 F.R.D. 540 (E.D.N.Y.1993) (quashing subpoena directed to Rule 706 experts); 1,087 Va. Asbestos Disease Judgment and Settlement Creditors of the Manville Corp. Asbestos Disease Compensation Fund v. Manville Personal Injury Settlement Trust (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 14 F.3d 151 (2d Cir.1994) (approving order permitting payments in reduced amounts); Findley v. Laughead (In re Johns-Manville Corp.), 27 F.3d 48 (2d Cir.1994) (authority to stay payments under All Writs Act); Findley v. Falise (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 878 F.Supp. 473 (E.D.N.Y.1995) (approving modification of plan for payments to those with medical claims; jurisdiction over Trust), aff'd and remanded for further findings, 78 F.3d 764 (2nd Cir.1996); Findley v. Falise (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 929 F.Supp. 1 (E.D.N.Y.1996) (interpreting new Plan); Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985); Barry I. Castleman, Asbestos: Medical and Legal Aspects (4th ed.1996); National Academy of Engineering, Product Liability and Innovation 135-36 (1994); George A. Peters & Barbara J. Peters, Sourcebook on Asbestos Diseases (1980-1999) (nineteen" }, { "docid": "13574270", "title": "", "text": "AMENDED MEMORANDUM, ORDER, AND JUDGMENT WEINSTEIN, Senior District Judge, and BURTON R. LIFLAND, Bankruptcy Judge: I. Introduction ................................................................3 II. When Federal Courts Must Decide an Issue of State Law.........................4 A Duty to Decide..........................................................4 B. Discretion and the Declaratory Judgment Act...............................5 C. Terms of Settlement.....................................................6 1. Power to Reject Entirely..............................................6 2. Limited Power to Interpret............................................6 3. New Conditions Requiring Modification.................................6 4. Court of Appeals’ Limitation on Courts’ Powers..........................6 III. Law of Maryland as Construed by the Court of Appeals...........................7 IV. PosL-Remand Proceedings....................................................7 A. Requests From Courts to Parties..........................................7 B. Remand Precludes Certification to Maryland Courts..........................8 C. Evidentiary Hearings ....................................................8 D. Courts’ Conclusions......................................................8 V. Order Interpreting Maryland Law.............................................9 A. Text...................................................................9 B. Illustrative Examples ....................................................9 VI. Fairness...................................................................10 VII. Conclusion.................................................................10 I. Introduction A class action against the Manville Trust was settled during trial. Payment by the Trust of some 10% of the value of injured workers’ claims was agreed to under the terms of the settlement. See Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988) (Manville I) (affirming Second Amended Plan of Reorganization); In Re Joint E. & S. Dist. Asbestos Litig., 129 B.R. 710 (E. & S.D.N.Y.1991) (Manville II) (certifying class and approving original settlement for Man-ville reorganization); In Re Joint E. & S. Dist. Asbestos Litig., 982 F.2d 721 (2d Cir. 1992) (Manville III), as modified, 993 F.2d 7 (2d Cir.1993) (Manville III.A) (vacating settlement); In Re Joint E. & S. Dist. Asbestos Litig., 878 F.Supp. 473 (E. & S.D.N.Y.1995) (Manville IV) (approving new settlement); In Re Joint E. &. S. Dist. Asbestos Litig., 78 F.3d 764 (2d Cir.1996) (Manville V) (remanding for resolution of Maryland law issue and affirming Manville IV in all other respects). The only issue unresolved is the effect under Maryland law of the settlement in allocating responsibility for payment when judgment is entered in that state. Manville V, 78 F.3d at 776-77. The agreement, the court of appeals has ruled, requires the district courts in the Southern and Eastern Districts of New York and the bankruptcy court in the Southern District of New York (“the courts”) to resolve that issue by predicting how the Maryland Court" }, { "docid": "18864582", "title": "", "text": "JON O. NEWMAN, Chief Judge: This is an appeal by a group of beneficiaries of the Manville Personal Injury Settle ment Trust (“the Trust”) from the February 1, 1994, order (“the Order”) issued jointly by the District Courts of the Eastern and Southern District of New York (Jack B. Weinstein, Judge) and the Bankruptcy Court of the Southern District of New York (Burton R. Lifland, Judge) (“the Trial Courts”). The Order extended until May 1, 1994, a series of stays initially entered December 7, 1992. The Order and its predecessors have been entered in connection with litigation seeking to restructure the Trust. See Findley v. Blinken, 982 F.2d 721 (2d Cir.1992) (vacating settlement of class action to restructure Trust), modified, 993 F.3d 7 (2d Cir.1993). The Order stays all litigation and proceedings against the Trust and stays, with certain exceptions, all payments by the Trust to Trust beneficiaries. The stay of payments has been partially lifted with respect to certain Trust beneficiaries who accepted reduced payments. See 1,087 Virginia Asbestos Disease Judgment and Settlement Creditors v. Manville Personal Injury Settlement Trust (In re Joint Eastern and Southern District Asbestos Litigation), 14 F.3d 151 (2d Cir.1994). Some of the appellants in the pending appeal have withdrawn their appeals by accepting reduced payments. Though there is a substantial question whether the appellants have raised in the Trial Courts the grounds of objection now asserted to the continuation of the litigation and payment stays, we are satisfied that, in any event, the objection to the Order is without merit. The authority of a district court to protect its jurisdiction is recognized by the All Writs Act, 28 U.S.C. § 1651 (1988), and the use of such authority has been specifically approved in the context of the conduct of complex litigation. See In re Agent Orange Product Liability Litigation, 996 F.2d 1425, 1431 (2d Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1125, 127 L.Ed.2d 434 (1994); In re Baldwin-United Corp., 770 F.2d 328 (2d Cir.1985). Baldwin-United is especially instructive. We there upheld a district court’s authority to issue an injunction prohibiting several states" }, { "docid": "20025043", "title": "", "text": "again, a pragmatic resolution of the Manville Trust allocation is desirable. 1. Phase II and Phase III Trials Neither the Trust nor Manville Corporation is currently in bankruptcy. While virtually insolvent, over time the Trust will pay a substantial percentage of its fair share of damages in accordance with the terms of a class Stipulation of Settlement. See Findley v. Blinken, 129 B.R. 710 (E. & S.D.N.Y.1991) (Amended Memorandum, Order and Final Judgment). Assuming that the Settlement is approved, payments are expected to begin on Level One (serious) claims within the first year and on Level Two (less serious) claims in the third year following entry of a final, nonappealable order. Treating the Trust as a settling defendant under these circumstances, even though the settlement amounts have not yet been fixed in negotiations between the Trust and plaintiffs, raises the question of how to determine the value of the amount plaintiffs will receive from the Trust in Phase II and III cases in order to calculate the proper credit to allot non-settling defendants. This is another aspect of the equitable allocation of the total damage award that the court must calculate pursuant to General Obligations Law section 15-108. Cf. In re Joint Eastern & Southern Dist. Asbestos Litig. (Gallin), 760 F.Supp. 33, 34-35 (E.D.N.Y.1991) (pursuant to G.O.L. § 15-108, court determines the value of settlement with Manville Trust to be paid over time; accepts face value of settlement rather than discounted value). The precise amount that each plaintiff will receive from the Trust in settlement cannot be reduced to a sum certain in light of the structure of the class action Settlement. See In re Joint Eastern & Southern Dists. Asbestos Litig., 120 B.R. 648, 670 Appendix C (E. & S.D.N.Y.1990) (Trust Distribution Process, § A: “Predictions of the number of future claims and their severity and of values to be achieved for Trust assets remain difficult to make with precision, so no guaranty of any specific level of payment can be made.”). Nevertheless, extensive evidence was introduced in the course of the Findley class action proceedings concerning the restructuring" }, { "docid": "20025045", "title": "", "text": "of the payment procedures of the Trust to determine the settlement values that the Trust will likely pay for particular diseases. See Tr. 1/2/91-1/3/91 & passim, Findley v. Blinken, 129 B.R. 710 (E. & S.D.N.Y.1991). The Amended Final Memorandum contained preliminary factual findings that for Level One injuries, defined to include asbestos-associated malignancies and severe asbestosis causing impairment similar to that attending cancer, the Man-ville Trust would probably pay, on average, 15% of the total liability for the particular injury. See Findley v. Blinken, 129 B.R. 710 (E. & S.D.N.Y.1991) (Part VII.D.4 & Appendix A). For Level Two injuries, including all asbestos-related illnesses not covered by Level One, the Manville Trust would probably pay — if the preliminary analysis is accurate — approximately 7.5% of the total liability. Id. In the Brooklyn Navy Yard cases the jury apportioned between 9-11% of the overall liability to the Johns-Manville Corporation. This roughly corresponds, considering the mixture of Level One and Two claims, with the amounts that plaintiffs may expect to receive from the Trust when discounted to present value to compensate for the time period over which payments will be made in the class action. Applying these figures pursuant to the General Obligations Law, non-settling defendants in Phase II and III cases would be entitled to deduct 15% of the verdict in Level One cases and 7.5% in Level Two cases to account for monies expected to be received by the plaintiffs from the Manville Trust in settlement of their claims against the Trust. This method differs from that followed by Judge McLaughlin in Gallin where the court subtracted the entire face .value of the plaintiff’s settlement with the Manville Trust ($100,000) while conceding that the Trust’s fiscal difficulties made it unlikely that plaintiff would actually receive that sum. In re Joint Eastern & Southern Dist. Asbestos Litig. (Gallin), 760 F.Supp. 33, 34-35 (E.D.N.Y.1991). It also contrasts with the approach endorsed in McNair v. Owens-Corning Fiberglas Corp., 890 F.2d 753, 756-57 (5th Cir.1989), and Cimino v. Raymark Industries, 751 F.Supp. 649, 656-57 (E.D.Tex.1990), in which the courts did not reduce plaintiffs’ verdicts" }, { "docid": "11433092", "title": "", "text": "of reorganization has already been confirmed, and the bankruptcy proceeding terminated. Continuing jurisdiction of federal courts over litigation affecting a long-established trust such as this one is limited to relatively minor matters such as interpreting prior orders and regulating the processing of claims. It does not extend to a major suit brought by the Trust against those not a party to the bankruptcy or to any closely related proceeding. II. Brief History of Manville Asbestos Litigation The sordid legal disasters constituting the asbestos, the tobacco and the overlapping litigations have often been told. See, e.g., In re Johns-Manville Corp., 36 B.R. 743 (Bankr.S.D.N.Y.1984) (representatives of future claimants may appear); Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636 (2d Cir.1988) (background of asbestos-caused diseases, bankruptcy litigation and approval of Plan of reorganization); In re Joint E. and S. Dist. Asbestos Litig. (In re Johns-Manville Corp.), Bankruptcy Nos. 82 B 11656(BRL) to 82 B 11676(BRL), 1990 WL 115772 (E.D.N.Y. July 16, 1990) (stay of all payments to claimants); In re Joint E. and S. Dist. Asbestos Litig. (In re Johns-Manville Corp.), Bankruptcy Nos. 82 B 11656(BRL) to 82 B 11676(BRL), 1990 WL 115772 (E.D.N.Y. July 16, 1990) (explaining need for stay); Findley v. Blinken (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 129 B.R. 710 (E.D.N.Y.1991) (history of asbestos, diseases, knowledge, bankruptcy, Trust operations; class action to modify Trust operations; approval of settlement), rev’d, 982 F.2d 721 (2d Cir.1992), modified, 993 F.2d 7 (2d Cir.1993); Findley v. Blinken (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp), Nos. 82 B 11656(BRL) to 82 B 11264(BRL), 1992 WL 364271 (E.D.N.Y. Dec. 7, 1992) (stay of payments); Findley v. Blinken (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Mansville Corp.), 830 F.Supp. 686 (E.D.N.Y.1993) (appointment of panel under Rule 706 of Federal Rules of Evidence to estimate future claims); Findley v. Blinken (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 151 F.R.D. 540 (E.D.N.Y.1993) (quashing subpoena directed to Rule 706 experts); 1,087 Va. Asbestos" }, { "docid": "5512626", "title": "", "text": "assets of the Trust so limited that payment of asbestos-related personal injury and wrongful death claims, cross-claims, and third-party claims brought against the Trust are in jeopardy? (2) Will the claims of earlier litigants paid on an individual basis exhaust the Trust’s available and projected assets, precluding payments to some claimants? On November 3, 1990 Special Master Frankel submitted his report. After several days of hearings and extensive submissions, he concluded that “[hjowever insolvency is defined, the Trust is deeply insolvent ... The Trust’s assets and expectations of future receipts are and will be so limited that there is a substantial risk that payments for present and prospective asbestos-related claims for personal injury and wrongful death will be in jeopardy ... There is a substantial probability that the award of damages to earlier litigants will exhaust the Trust’s available and projected assets ... The foregoing findings and conclusions, inasmuch as they supply affirmative answers to the Court’s questions, are reached upon the basis of evidence that is clear and convincing to the point of being undisputed and beyond dispute in all essential respects.” Special Master’s Report, In re Johns-Manville Corp., Nos. 82 B 11656 (BLR) through 82 B 11676 (BLR), at 20-21 (E.D.N.Y. Nov. 3, 1990). [Supra, p. 668.] On November 19, 1990 Plaintiffs Bernadine K. Findley, as Executrix of the Estate of Hilliard Findley, Uma Lail Caldwell, as Executrix of the Estate of Odell Caldwell, Edward Lmdley, Joseph C. Jones, and James William Barnette, Jr., (“class plaintiffs”) filed a class action on behalf of themselves and all other beneficiaries of the Manville Trust seeking a restructuring of the Trust. Also on November 19, 1990 the class plaintiffs and the Trust filed a proposed stipulation of settlement. The class plaintiffs seek an order a) conditionally certifying this case as a class action pursuant to Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure on behalf of all beneficiaries of the Trust; b) conditionally appointing the class plaintiffs as class representatives; c) conditionally appointing Ness, Motley Loadholt, Richardson & Poole, P.C.; Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, Inc.; Wilentz," }, { "docid": "4335784", "title": "", "text": "In re Johns-Manville Corp., 68 B.R. 618, 620 (Bankr.S.D.N.Y.1986). The plan involved the creation of two trusts, one to resolve claims brought by victims of asbestos-related disease, the Manville Personal Injury Settlement Trust (the “Manville Trust” or “Trust”), and the other to re solve asbestos-related property claims. See id. at 621-22. Manville was to fund the Trust for at least 30 years. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648, 652 (E. & S.D.N.Y.1990). The plan was ultimately approved over objections. See In re Johns-Manville Corp., 68 B.R. 618, 621-22 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987), aff'd sub nom., Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988). An injunction required all claimants seeking compensation for existing and future asbestos health claims caused by exposure to Manville products to proceed solely against the Trust; Manville and its insurers were immunized. See id. at 624-28. The Trust began evaluating and paying claims under its original operating procedures in 1989. By then claimants had been stayed from receiving compensation for some seven years It quickly became obvious that the Trust’s funds were insufficient because of the higher than projected number of claims, rate of filing, and average liquidated value. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648, 652 (E. & S.D.N.Y.1990); In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473, 479 (E. & S.D.N.Y.1995). By the spring of 1990, the Trust was unable to meet its current and short-term obligations. Stays on all payments to claimants and all proceedings against the Trust were consequently ordered by the courts until the Trust could be restructured. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. at 652, 687-89 (Appendices F, G). A Special Master, Marvin E. Frankel, was appointed to assess the financial status of the Trust. After holding hearings and receiving extensive submissions, he concluded that the Trust was “deeply insolvent” and that there was a “substantial risk that payments for ... asbestos related claims ... [would] be in jeopardy.” Id. at 654, 661-68 (Appendix B). In" }, { "docid": "11433102", "title": "", "text": "impossible for the Trust to pay judgments in the many cases already in litigation or in settlements of other claims. The courts promptly stayed payments by the Trust. See In re Joint E. and S. Dist. Asbestos Litig., 1990 WL 115772 (stay of all payments to claimants); In re Joint E. and S. Dist. Asbestos Litig., 1990 WL 115785 (explaining need for stay). The trustees and chief operating officer of the Trust were replaced. Negotiations were undertaken through a class action suit against the Trust to revise the payment Plan. See Findley, 129 B.R. 710; Findley, 982 F.2d 721. Tobacco was not impleaded. In 1994, Congress passed a special law to ensure that the assets of the former asbestos corporations were not subject to claims after bankruptcy. See Bankruptcy Reform Act of 1994, Pub.L. 103-394, § 111(a), 108 Stat. 4106, 4113-4117 (codified at 11 U.S.C. § 524(g), (h)). All future claims arising from delicts of Manville had to be made against the Trust. See In re Joint E. & S. Dist. Asbestos Litig., 878 F.Supp. at 570-71 (description of Amendment to bankruptcy statute and its effect). D.Second Period of Trust Operation, 1996 to Present 1. New Plan After extensive hearings and appeals— taking into account the needs of third party producer-claimants, future claimants and others, as well as fiscal realities— payments recommenced under a new Plan in 1996. These payments were based on a matrix, with almost no realistic opportunity to escape to the tort-court system. See Findley, 878 F.Supp. 473 (approval of settlement of class action modifying Plan); id. at 575-80 (stipulation of settlement); id. at 580-615 (new Trust Distribution Process). In view of the limited remaining assets of the Trust and the projected number of claims, payments were limited to 10% of the value of claims fixed by the new Plan. Legal fees were also limited in order to protect the Trust’s assets. Claims’ values were discounted by taking into account the smoking history of claimants: The Scheduled Values are based on extensive review of the current settlement and litigation environment and on the Trust’s historic experience settling" }, { "docid": "20025044", "title": "", "text": "another aspect of the equitable allocation of the total damage award that the court must calculate pursuant to General Obligations Law section 15-108. Cf. In re Joint Eastern & Southern Dist. Asbestos Litig. (Gallin), 760 F.Supp. 33, 34-35 (E.D.N.Y.1991) (pursuant to G.O.L. § 15-108, court determines the value of settlement with Manville Trust to be paid over time; accepts face value of settlement rather than discounted value). The precise amount that each plaintiff will receive from the Trust in settlement cannot be reduced to a sum certain in light of the structure of the class action Settlement. See In re Joint Eastern & Southern Dists. Asbestos Litig., 120 B.R. 648, 670 Appendix C (E. & S.D.N.Y.1990) (Trust Distribution Process, § A: “Predictions of the number of future claims and their severity and of values to be achieved for Trust assets remain difficult to make with precision, so no guaranty of any specific level of payment can be made.”). Nevertheless, extensive evidence was introduced in the course of the Findley class action proceedings concerning the restructuring of the payment procedures of the Trust to determine the settlement values that the Trust will likely pay for particular diseases. See Tr. 1/2/91-1/3/91 & passim, Findley v. Blinken, 129 B.R. 710 (E. & S.D.N.Y.1991). The Amended Final Memorandum contained preliminary factual findings that for Level One injuries, defined to include asbestos-associated malignancies and severe asbestosis causing impairment similar to that attending cancer, the Man-ville Trust would probably pay, on average, 15% of the total liability for the particular injury. See Findley v. Blinken, 129 B.R. 710 (E. & S.D.N.Y.1991) (Part VII.D.4 & Appendix A). For Level Two injuries, including all asbestos-related illnesses not covered by Level One, the Manville Trust would probably pay — if the preliminary analysis is accurate — approximately 7.5% of the total liability. Id. In the Brooklyn Navy Yard cases the jury apportioned between 9-11% of the overall liability to the Johns-Manville Corporation. This roughly corresponds, considering the mixture of Level One and Two claims, with the amounts that plaintiffs may expect to receive from the Trust when discounted to" }, { "docid": "20346065", "title": "", "text": "bankruptcy. During the bankruptcy proceedings, the Manville Personal Injury Settlement Trust (“Trust”) was organized under New York law. Most of the Corporation’s assets — primarily 80% of its equity and the proceeds of its insurance policies — were assigned to the Trust. The Corporation itself was set free of its liability; all claims were to be made against the Trust. See In re Johns-Manville Corp., 68 B.R. 618, 635 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987), aff'd sub nom. Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir. 1988). As a result of low estimates of potential claims, the Trust’s assets immediately proved grossly inadequate. See In re Joint E. & S. Dist. Asbestos Litig. (Findley v. Blinken), 129 B.R. 710, 754-60 (E. & S.D.N.Y.1991) [Findley I], vacated, 982 F.2d 721 (2d Cir. 1992) [Findley II], modified on reh’g, 993 F.2d 7 (2d Cir.1993) [Findley III]. When the distribution plan was confirmed in 1986, it was estimated that the Trust would receive approximately 83,000 to 100,000 claims over the course of its life into the middle of the next century. To date, the Trust has received approximately 240,000 claims and it is expected to receive hundreds of thousands more. Moreover, the projected value of the claims was but a fraction of what had to be paid to each claimant. Unforeseen litigation expenses — running at the rate of $52 million per year — and heavy Trust administration expenses further depleted the assets. Current projections indicate that, in the absence of a settlement, over 400,000 claimants, representing over $18 billion in claim liability, will never receive any compensation for their injuries from the Trust. See Figure 1. Figure 1 and subsequent figures in this Memorandum were prepared by the Trust. They reflect reasonable assumptions borne out by the record of these proceedings. See Table 2, below, comments to the assumptions in that table and other tables and graphics based upon these assumptions. Settlement of a Rule 23(b)(1)(B) non-opt-out class action was approved to ensure some payment to all claimants. See Findley I, 129 B.R. 710. The Court of Appeals rejected the first" }, { "docid": "20346064", "title": "", "text": "the Litigation and Risk if It Continues...............................570 8. Public Interest ........................................................ 570 9. Suffering Claimants.........................................................570 IX. Amendment to Bankruptcy Statute ..................................................570 A. Statute........................................................................570 1. Future Reorganizations......................................................571 2. Existing Plans..............................................................571 B. Compliance by Settlement.......................................................572 C. Continuing Injunction...........................................................572 D. Implications as to Corpus.......................................................572 X. Appointments......................................................................573 XI. Future of Trust....................................................................573 XII. Orders and Stays ..................................................................573 XIII. Fee Applications ...................................................................574 XIV. Conclusions........................................................................574 Addendum A Settlement Stipulation Addendum B Amendments to Settlement Stipulation WEINSTEIN, Senior District Judge: I. Introduction It is time to end the incredibly convoluted and complex Manville asbestos litigation. It is now terminated, subject to appeals. This non-opt-out diversity class action was brought by Beneficiaries of the Manville Trust, most of whom are persons claiming to be injured by asbestos produced by the Johns-Manville Corporation (“Manville” or “Corporation”). Hundreds of thousands of workers and others have been seriously harmed by Manville and other vendors of asbestos products who had long known of the dangers of their products, but had failed to warn properly or to take other adequate protective steps. The resulting national disaster led to Manville’s bankruptcy. During the bankruptcy proceedings, the Manville Personal Injury Settlement Trust (“Trust”) was organized under New York law. Most of the Corporation’s assets — primarily 80% of its equity and the proceeds of its insurance policies — were assigned to the Trust. The Corporation itself was set free of its liability; all claims were to be made against the Trust. See In re Johns-Manville Corp., 68 B.R. 618, 635 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987), aff'd sub nom. Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir. 1988). As a result of low estimates of potential claims, the Trust’s assets immediately proved grossly inadequate. See In re Joint E. & S. Dist. Asbestos Litig. (Findley v. Blinken), 129 B.R. 710, 754-60 (E. & S.D.N.Y.1991) [Findley I], vacated, 982 F.2d 721 (2d Cir. 1992) [Findley II], modified on reh’g, 993 F.2d 7 (2d Cir.1993) [Findley III]. When the distribution plan was confirmed in 1986, it was estimated that the Trust would receive approximately 83,000 to 100,000 claims over the course of its life into the middle" }, { "docid": "4335783", "title": "", "text": "Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J.L. & Pub. Pol’y 541 (1992); Parloff, supra. 2. Manville Trust The Manville Trust was one of the earlier manifestations of the forthcoming asbestos litigation crisis. In August 1982, the Johns-Manville Corporation (now known as the Manville Corporation) (“Manville”) filed for Chapter 11 bankruptcy. It faced “the mammoth problem of uncontrolled proliferation of asbestos health suits brought against it because of its substantial use for many years of products containing asbestos which injured those who came into contact with the dust of this lethal substance.” In re Johns-Manville Corp., 36 B.R. 727, 729 (Bankr. S.D.N.Y.1984); see also Mark D. Plevin & Paul W. Kalish, Where Are They Now? A History of the Companies That Have Sought Bankruptcy Protection Due to Asbestos Claims, Mealey’s Asbestos Bankruptcy Rep., Aug. 2001, at 27 (Manville second major asbestos defendant to take this step). In 1986, following extended proceedings in “these huge, complex, unparalleled reorganization proceedings,” the parties presented a largely consensual reorganization plan to the bankruptcy court for confirmation. In re Johns-Manville Corp., 68 B.R. 618, 620 (Bankr.S.D.N.Y.1986). The plan involved the creation of two trusts, one to resolve claims brought by victims of asbestos-related disease, the Manville Personal Injury Settlement Trust (the “Manville Trust” or “Trust”), and the other to re solve asbestos-related property claims. See id. at 621-22. Manville was to fund the Trust for at least 30 years. See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648, 652 (E. & S.D.N.Y.1990). The plan was ultimately approved over objections. See In re Johns-Manville Corp., 68 B.R. 618, 621-22 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987), aff'd sub nom., Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988). An injunction required all claimants seeking compensation for existing and future asbestos health claims caused by exposure to Manville products to proceed solely against the Trust; Manville and its insurers were immunized. See id. at 624-28. The Trust began evaluating and paying claims under its original operating procedures in 1989. By then claimants had been stayed from receiving compensation for some seven" }, { "docid": "4335786", "title": "", "text": "November 1990 a class action complaint and a proposed stipulation of settlement were filed. See id. at 654. The court certified the suit as a mandatory non-opt out class action under Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure. The class consisted of “all beneficiaries each of whom has or will have a claim either for death or personal injury caused by exposure to asbestos, or a claim for warranty, guarantee, indemnification or contribution arising from an obligation of the Trust for the payment of a death or personal injury claim.” Findley I, 129 B.R. at 776. To ensure that all present and future claimants received some payment, the court approved the settlement agreed on by the parties. See id. The court of appeals approved the use of a non-opt out class action, but remanded for the organization of subclasses. See generally In re Joint E. & S. Dists. Asbestos Litig., 982 F.2d 721 (2d Cir.1992) (“Findley II”), modified on reh’g, 993 F.2d 7 (2d Cir.1993) (“Findley III”). On remand, the courts certified six subclasses — Codefendant Manufacturers, Manville Distributors, MacArthur, Present Claimants, Future Claimants, and Claimants with Pre-November 19, 1990 Settlements and Judgements. They appointed subclass representatives and approved counsel. See In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473, 488-89 (E. & S.D.N.Y.1995). After extensive negotiations the parties filed a stipulation of settlement in July 1994 (the “Settlement”). See id. at 492. In January 1995, the courts re-certified the class and subclasses and approved the amended Settlement. See id. at 511, affd in primary part, 78 F.3d 764 (2d Cir.1996). Under the terms of the 1995 Settlement the rights and duties of substantially all class members and of the Trust were governed by a new Trust Distribution Process (“1995 TDP”). In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. at 493; 1995 TDP, attached as Addendum A to id. at 580-601. The goal of the Trust remained “to treat all claimants equitably” despite the limited fund available to the Trust and the Trust’s deep insolvency and consequent inability to pay all Beneficiaries" }, { "docid": "11433101", "title": "", "text": "and future claimants. Nonetheless, the Trust paid huge sums from its limited capital to plaintiffs’ attorneys, who effectively controlled the Trust, for their clients and for their own fees. The Trust’s funds were also being bled by huge transactional costs — at the rate of some $1,000,000 a week — defending suits by those seeking to escape the queue before the Trust’s money ran out. As a result, the Trust’s assets were soon exhausted. Settlements were negotiated in bulk, with little relationship to litigated value or to the projected tort-court recoveries upon which the Plan had been predicated. Discounts were, however, made for smoker-claimants during these negotiations on the assumption of contributory negligence. The Trust did not implead Tobacco in the litigations pending against it. Claims multiplied in numbers and values far beyond what had been contemplated in the bankruptcy proceedings. For all intents and purposes, the Trust was insolvent. Yet, neither the Trust nor anyone else sued Tobacco or sought to implead it. The district and bankruptcy courts learned in 1990 that it was impossible for the Trust to pay judgments in the many cases already in litigation or in settlements of other claims. The courts promptly stayed payments by the Trust. See In re Joint E. and S. Dist. Asbestos Litig., 1990 WL 115772 (stay of all payments to claimants); In re Joint E. and S. Dist. Asbestos Litig., 1990 WL 115785 (explaining need for stay). The trustees and chief operating officer of the Trust were replaced. Negotiations were undertaken through a class action suit against the Trust to revise the payment Plan. See Findley, 129 B.R. 710; Findley, 982 F.2d 721. Tobacco was not impleaded. In 1994, Congress passed a special law to ensure that the assets of the former asbestos corporations were not subject to claims after bankruptcy. See Bankruptcy Reform Act of 1994, Pub.L. 103-394, § 111(a), 108 Stat. 4106, 4113-4117 (codified at 11 U.S.C. § 524(g), (h)). All future claims arising from delicts of Manville had to be made against the Trust. See In re Joint E. & S. Dist. Asbestos Litig., 878 F.Supp." }, { "docid": "5512527", "title": "", "text": "Johns-Manville Corp., (S.D.N.Y., E.D.N.Y & Bankr. S.D.N.Y. Nov. 6, 1990), infra p. 660. On September 7, 1990, the Trust and Manville announced an agreement in principle to fund approximately $520 million in additional monies to the Trust over the next seven years. Negotiations with plaintiffs’ attorneys and others on a restructured payment plan continued. The Trust moved for a determination that it constituted a “limited fund” within the meaning of Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure on September 18, 1990. The Honorable Marvin E. Frankel was appointed Special Master to determine whether the financial assets of the Trust are so limited that payment of asbestos-related personal injury and wrongful death claims, cross-claims, and third-party claims brought against the Trust are in jeopardy and whether payment of claims on an- individual basis would exhaust the Trust’s available and projected assets precluding payments to some claimants. Special Master Frankel submitted his report on November 3, 1990. After several days of hearings and extensive submissions, he concluded that [hjowever insolvency is defined, the Trust is deeply insolvent.... The Trust’s assets and expectations of future receipts are and will be so limited that there is a substantial risk that payments for present and prospective asbestos-related claims for personal injury and wrongful death will be in jeopardy.... There is a substantial probability that the award of damages to earlier litigants will exhaust the Trust’s available and projected assets.... The foregoing findings and conclusions, inasmuch as they supply affirmative answers to the Court’s questions, are reached upon the basis of evidence that is clear and convincing to the point of being undisputed and beyond dispute in all essential respects. Special Master’s Report, In re Johns-Manville Corp., Nos. 82 B 11656 (BRL) through 82 B 11676 (BRL), at 20-21 (E.D.N.Y. Nov. 3, 1990), infra p. 668. On November 19, 1990, the United States District Court for the Eastern and Southern Districts of New York and the Bankruptcy Court for the Southern District of New York (the “courts”) issued the following orders to show cause returnable on November 23, 1990: first, why an order should" }, { "docid": "11433091", "title": "", "text": "argues that had it been aware of the malign synergistic medical effect of smoking on those claiming compensation because of exposure to Manville’s asbestos, either it or Manville would have sued Tobacco years ago for contribution. All of plaintiffs claims are based upon state law. They nonetheless allege federal subject matter jurisdiction (competence of the district court) predicated upon the federal courts’ role in establishing the Trust in the bankruptcy proceeding and its continuing power over Trust. The action was assigned to the judge of the Eastern District of New York sitting by designation in the district court for the Southern District of New York. Defendants move to dismiss on the ground that the federal courts lack competence to adjudicate the case. The motion must be granted. It is, therefore, unnecessary to address defendants’ summary judgment motion arguing that the evidence cannot support a recovery predicated on the Trust’s substantive theory. Dismissal is mandated because bankruptcy courts possess only limited competence. This deficiency is particularly ap parent where, as in the instant case, the plan of reorganization has already been confirmed, and the bankruptcy proceeding terminated. Continuing jurisdiction of federal courts over litigation affecting a long-established trust such as this one is limited to relatively minor matters such as interpreting prior orders and regulating the processing of claims. It does not extend to a major suit brought by the Trust against those not a party to the bankruptcy or to any closely related proceeding. II. Brief History of Manville Asbestos Litigation The sordid legal disasters constituting the asbestos, the tobacco and the overlapping litigations have often been told. See, e.g., In re Johns-Manville Corp., 36 B.R. 743 (Bankr.S.D.N.Y.1984) (representatives of future claimants may appear); Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636 (2d Cir.1988) (background of asbestos-caused diseases, bankruptcy litigation and approval of Plan of reorganization); In re Joint E. and S. Dist. Asbestos Litig. (In re Johns-Manville Corp.), Bankruptcy Nos. 82 B 11656(BRL) to 82 B 11676(BRL), 1990 WL 115772 (E.D.N.Y. July 16, 1990) (stay of all payments to claimants); In re Joint E. and S." }, { "docid": "11433094", "title": "", "text": "Disease Judgment and Settlement Creditors of the Manville Corp. Asbestos Disease Compensation Fund v. Manville Personal Injury Settlement Trust (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 14 F.3d 151 (2d Cir.1994) (approving order permitting payments in reduced amounts); Findley v. Laughead (In re Johns-Manville Corp.), 27 F.3d 48 (2d Cir.1994) (authority to stay payments under All Writs Act); Findley v. Falise (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 878 F.Supp. 473 (E.D.N.Y.1995) (approving modification of plan for payments to those with medical claims; jurisdiction over Trust), aff'd and remanded for further findings, 78 F.3d 764 (2nd Cir.1996); Findley v. Falise (In re Joint E. and S. Dist. Asbestos Litig.; In re Johns-Manville Corp.), 929 F.Supp. 1 (E.D.N.Y.1996) (interpreting new Plan); Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985); Barry I. Castleman, Asbestos: Medical and Legal Aspects (4th ed.1996); National Academy of Engineering, Product Liability and Innovation 135-36 (1994); George A. Peters & Barbara J. Peters, Sourcebook on Asbestos Diseases (1980-1999) (nineteen volumes); S. Elizabeth Gibson, Mass Torts Limited Fund and Bankruptcy Reorganization Settlements: Four Case Studies 1-45 (Federal Judicial Ctr.1999); Jay Tidmarsh, Mass Tort Settlement Class Actions: Five Case Studies 47-74 (Federal Judicial Ctr. 1998); Advisory Committee on Civil Rules and the Working Group on Mass Torts, Report on Mass Tort Litigation app. E (1999) (report without appendices is reported at 187 F.R.D. 293 (1999); Thomas E. Willging, Mass Torts Problems and Proposals: A Report to the Mass Torts Working Group, 187 F.R.D. 328 (1999); Conference on Mass Torts, Mass Torts Working Group, Phila., Pa., May 27-28, 1998, § 14 (1998) (discussing National Bankruptcy Review Commission’s Proposal)); Frank J. Maechiarola, The Manville Personal Injury Settlement Trust: Lessons for the Future, 17 Cardozo L.Rev. 583 (1996); Stephen Labaton, How a Company Lets Its Cash Talk, N.Y. Times, Oct. 17, 1999, § 3, at 1 (on obtaining legislative protection from asbestos suits); see generally Andrews Asbestos Litig. Rep. (semimonthly Feb. 1979 to date); Mealey’s Asbestos Litig. Rep. (semimonthly Feb. 1984 to date); 1 Sourcebook on Asbestos Diseases: Case" }, { "docid": "22901587", "title": "", "text": "on the verdict form as a fault sharer. 1. Manville Trust We first consider whether the Manville Trust was a settled party for purposes of verdict molding. Defendants argue that they are entitled to a set-off under G.O.L. § 15-108 for what they view as plaintiffs’ settlement with the Manville Trust. Judge Weinstein properly determined, however, that the Manville Trust could not be viewed as a settlor. The Manville Trust arose out of the Johns-Manville Corporation’s discharge in bankruptcy. The Trust’s financial troubles led to a class action, which ended with a settlement establishing a procedure by which class members could make claims against the Trust and get paid. In re Joint Eastern & Southern Dist. Asbestos Litig.; In re Johns-Manville Corp.; Findley v. Blinken (Findley), 129 B.R. 710 (E. & S.D.N.Y.1991). Under the class settlement, a distribution process was created whereby claimants could negotiate their claims with the Trust within carefully delineated bounds, and receive payments over time. Id. at 767-70, 856-57. “As a technical matter, the Trust is removed from tort litigation except under very restricted circumstances. Negotiated settlement of claims is clearly favored under the Settlement.” Id. at 856. The present plaintiffs, instead of giving releases and getting paid, renounced their claims against the Manville Trust. The plaintiffs thus chose, under the Findley settlement, not to settle with the Trust. Judge Weinstein, who presided over Find-ley, noted that “plaintiffs were correct that the individual claims against the trust had not been settled, although the class action had set a framework for individual settlements.” In re Eastern & Southern Dists. Asbestos Litig., No. NYAL 4000, No. TS 90-9999, slip op. at 1, 1991 WL 270626 (E. & S.D.N.Y. Dec. 5, 1991). Although the Findley settlement may resemble a settlement of plaintiffs’ individual claims against the Trust, it does not actually settle those claims. The distinction between a settlement and a structure for settlement is real, and in this case it is dispositive. The defining moment of settlement, by the clear terms of section 15-108, is when the plaintiff gives a release to the defendant. N.Y.G.O.L. § 15-108(a) (McKinney" }, { "docid": "18520329", "title": "", "text": "is described in our prior opinions in this litigation, familiarity with which is assumed. The Trust, created in 1988 pursuant to the bankruptcy-court-approved Second Amended and Restated Plan of Reorganization of Manville, assumed liability for all health claims brought against Manville and “Other Asbestos Obligations” of Manville. Further litigation of those claims against Manville was enjoined by the bankruptcy court in order to protect the value of Man-ville’s equity, most of which was contributed to the Trust. See Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988) (“Findley I”) (affirming Second Amended and Restated Plan of Reorganization). The beneficiaries of the Trust (“Trust Beneficiaries”) include (a) persons suffering, or who will in the future suffer, from asbestos-related diseases caused in whole or in part by exposure to Manville asbestos or asbestos-containing products, (b) entities formerly joined with Manville as codefendants in asbestos-related litigation, and (c) manufacturers and distributors of Manville asbestos or asbestos-containing products who have claims against Man-ville for indemnity or contribution. When the bankruptcy court first confirmed the Manville reorganization plan, it was estimated that approximately 83,000-100,000 claims would be filed against the Trust during the course of its existence. In fact, vastly more claims (some 240,000 by December 1994) were filed. As a result of the heavy filings and the fact, inter alia, that the value of the claims filed was far greater than had been anticipated, the Trust became insolvent, leading to the commencement of the present litigation in November 1990 to restructure the Trust. The first settlement of this litigation was vacated, see In Re Joint Eastern & Southern District Asbestos Litigation, 982 F.2d 721 (2d Cir.1992), as modified, 993 F.2d 7 (2d Cir.1993) (“Findley II ”), and the matter was remanded to the Trial Courts for further proceedings, including the designation of appropriate subclasses under Fed. R.CivJP. 23 and a precise delineation of the rights accorded to codefendant manufacturers, see id. at 740. Following our remand in Findley II, a total of six subclasses were designated. The three plaintiff subclasses are Present Claimants, Future Claimants, and Claimants with Pre-November 19, 1990 Settlements and Judgments." } ]

[ { "docid": "22932182", "title": "", "text": "656. However, the district court concluded that a fair trial appeared impossible because of appellants’ refusal to cooperate. We agree, and so do not give this factor much weight in this case. Finally, the fifth factor requires the district court to consider alternate, less severe, sanctions before ordering dismissal. To determine whether the district court fulfilled this obligation, the reviewing court examines whether the court (1) explicitly discussed the feasibility of less drastic sanctions and explained why alternative sanctions would be inappropriate, (2) implemented alternative sanctions before ordering dismissal, and (3) warned the party of the possibility of dismissal before actually ordering it. Adriana, 913 F.2d at 1412-13. But, “explicit discussion of alternatives is unnecessary if the district court actually tries alternatives before employing the ultimate sanction of dismissal.” Malone, 833 F.2d at 132. Here, the district court initially ordered appellants to pay attorneys’ fees incurred because of their no-show at scheduled depositions. In ordering these sanctions, the court explicitly stated that it hoped these sanctions would encourage appellants to abide by the schedule of depositions. Further, the court pointedly threatened appellants with harsher sanctions, including dismissal, if they ignored depositions again. Thus, the court both attempted less severe sanctions and issued warnings, to no avail. Appellants argue that the district court failed to consider alternative sanctions because it did not allow appellants’ representatives to be deposed over the phone or by written interrogatories. This argument confuses alternative means of conducting depositions with alternative sanctions. The court does not abuse its discretion to sanction when it does not make the deposition as easy as possible for the party being deposed. See, e.g., Standard Metals Corp., 817 F.2d at 628 (district court has wide discretion in setting place and time of deposition). Since only the fourth factor weighs in favor of appellants in this case, we conclude that the district court did not abuse its discretion in concluding that the balance of factors tipped in favor of dismissal. B Besides weighing the foregoing factors, the district court must also determine that the violations of discovery orders were due to the willfulness," } ]

[ { "docid": "8542855", "title": "", "text": "Corp., 178 F.R.D. 56, 59 (D.Md.1998) (noting that the Fourth Circuit requires that “district courts must precede dismissal with an ‘explicit and clear’ threat to a party that failure to meet certain conditions could result in dismissal of the party’s case with prejudice”) (citations omitted). Although HQM requests the dismissal without prejudice of nine plaintiffs whom it alleges failed to attend their scheduled depositions, the letters exchanged between the attorneys indicate that only four of the plain tiffs were scheduled to appear that day. (Plfs.’ Opp’n, Ex. 3, 4). Of the four, three, Mary Camper, Susan O’Brien, and Barbara Courtney, did not attend the depositions. HQM’s motion, therefore, applies only to those three plaintiffs. HQM’s request for dismissal as to Mary Camper, Susan O’Brien, and Barbara Courtney will be denied for two reasons. First, the plaintiffs had no notice or warning that failure to appear might result in dismissal of their action. As discussed above, the Fourth Circuit favors such pre-dismissal warnings. See, e.g., Hathcock, 53 F.3d at 40; Choice Hotels, 11 F.3d at 471; Sadler, 178 F.R.D. at 59. Second, this case is easily distinguished from those in which dismissal was appropriate in light of repeated failures to appear and numerous refusals to comply with discovery requests. See Carter, 155 F.R.D. at 130; Ham, 1989 WL 46784 at *1. There is no such repeated malfeasance here. This is the first occasion on which each of these three plaintiffs have failed to appear for a deposition. While undoubtedly vexing to HQM and its attorneys, this one act is neither severe or pervasive enough to warrant dismissal. Further, Plaintiffs’ counsel has proffered explanations for the difficulty in scheduling depositions and transporting the plaintiffs to Baltimore. Accordingly, HQM’s motion for sanctions will be denied. The plaintiffs are on notice, however, that further refusal to comply with discovery deadlines may result in dismissal. II. Motion for Court Facilitated Notice to Similarly Situated Employees Plaintiffs have filed this suit for unpaid wages, overtime pay, and liquidated damages pursuant to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq., on" }, { "docid": "4433289", "title": "", "text": "MEMORANDUM OPINION BEATY, District Judge. This matter comes before the Court on Defendants’ Motion to Dismiss. For the reasons stated herein, this motion will be granted. 1. BACKGROUND Plaintiff Uma Viswanathan brought an action for employment discrimination against the above named defendants. Since that time she has filed a plethora of motions. The magistrate judge issued an order regarding discovery. At the time of the order, Plaintiff had twice failed to appear at her scheduled deposition. The magistrate judge ordered that Plaintiff be sanctioned for her failure to appear at the second scheduled deposition. Viswanathan v. Scotland County Board of Education, No. 3:94CV0004 (M.D.N.C. August 22, 1994) (magistrate judge’s order granting sanctions). The sanctions amounted to $1,125.12, which was the calculation of attorneys’ fees and other expenses for the second aborted deposition. (Id. at 5, 9). This Order included several factual findings about the Plaintiff and her second failure to appear. The magistrate judge found that “Plaintiffs objections are not only not well-founded but indicate a pattern of a lack of good faith.” (Id. at 3). The magistrate judge also found that “Plaintiff has been actively non-cooperative and non-compliant in an attempt to harass and intimidate Defendants and/or run up the costs of this litigation.” (Id. at 5). The magistrate judge also stated that “the Court ... fails to find any evidence that she took any positive steps to cooperate in the scheduling of her deposition. Rather, all of the evidence is to the contrary.” (Id. at 6). The magistrate judge further remarked that “Plaintiff has not cooperated with discovery but has been intransigent and combative.” (Id.) The magistrate judge found that Plaintiffs argument explaining why she should not have to appear at the deposition was “not only an insufficient but insincere reason for failing to appear at her deposition.” (Id.) The magistrate judge ordered that Plaintiff appear for a third deposition on either September 13, 14, or 15, 1994, the precise date to be determined by the defendants. The magistrate judge made it expressly clear that disobedience of this order on the part of the Plaintiff would result in" }, { "docid": "4433295", "title": "", "text": "to follow discovery orders even after threatened with dismissal). Cf. Wilson v. Volkswagen of America, Inc. 561 F.2d 494, 503-04 (4th Cir.1977) (explaining that default judgment should not be granted unless the plaintiff has demonstrated “flagrant bad faith” or “ ‘callous disregard’ of its obligation under the Rules”) (quoting Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976)), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978); Toma v. City of Weatherford, 846 F.2d 58 (10th Cir.1988) (excusing plaintiffs failure to appear at deposition on short notice when defendant knew that plaintiff was at police academy in a different state and could not attend); Griffin v. Aluminum Co. of Am., 564 F.2d 1171 (5th Cir.1977) (distinguishing single failure to appear at deposition due to misunderstanding of discovery rules, for which monetary sanction may be appropriate, from repeated violations and/or bad faith, for which dismissal may be appropriate). In this case, the magistrate judge found that Plaintiff was acting in bad faith. Defendants have suffered a substantial amount of prejudice in the form of wasted time, attorneys’ fees, and inability to obtain information necessary to prepare their defense. It is important that litigants be deterred from flouting a magistrate judge’s orders, especially the plaintiff in this case. Parties must follow discovery orders, even if they plan to appeal. In addition, Plaintiffs history has shown that less severe sanctions have simply not worked. Plaintiff, after receiving a money penalty and a warning that her case would be dismissed, failed to appear at her third deposition. Her refusal to cooperate with the magistrate judge’s scheduling order and her failure to follow a direct order regarding her next deposition indicates that dismissal is the only way to preserve the integrity of the justice system in this case. 3. CONCLUSION Plaintiff Viswanathan has demonstrated flagrant bad faith; and callous disregard of her obligation to obey the discovery schedule set out by the magistrate judge, and also a specific, written order to attend a deposition. The magistrate judge’s efforts to induce her cooperation" }, { "docid": "8542854", "title": "", "text": "168 F.R.D. 178, 181 (D.Md.1996) (fining plaintiff for failure to appear at two scheduled depositions); Viswanathan v. Scotland County Bd. of Educ., 165 F.R.D. 50, 53-54 (M.D.N.C.1995), aff'd by 76 F.3d 377, 1996 WL 36916 (4th Cir. Jan 31, 1996), (dismissing complaint after plaintiff failed to appear for her third deposition and less severe sanctions had no appreciable effect on her intransigence). Additionally, the Fourth Circuit has more recently emphasized the importance of warning a party prior to dismissing its claim as a discovery sanction. See Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40 (4th Cir.1995) (“[Tjhis court has emphasized the significance of warning a defendant about the possibility of default before entering such a harsh sanction.”); Choice Hotels Int’l v. Goodwin and Boone, 11 F.3d 469, 471 (4th Cir.1993) (“The plaintiff is entitled to be made aware of this drastic consequence of failing to meet the court’s conditions at the time the conditions are imposed, when he still has the opportunity to satisfy the conditions and avoid it.”); Sadler v. Dimensions Health Corp., 178 F.R.D. 56, 59 (D.Md.1998) (noting that the Fourth Circuit requires that “district courts must precede dismissal with an ‘explicit and clear’ threat to a party that failure to meet certain conditions could result in dismissal of the party’s case with prejudice”) (citations omitted). Although HQM requests the dismissal without prejudice of nine plaintiffs whom it alleges failed to attend their scheduled depositions, the letters exchanged between the attorneys indicate that only four of the plain tiffs were scheduled to appear that day. (Plfs.’ Opp’n, Ex. 3, 4). Of the four, three, Mary Camper, Susan O’Brien, and Barbara Courtney, did not attend the depositions. HQM’s motion, therefore, applies only to those three plaintiffs. HQM’s request for dismissal as to Mary Camper, Susan O’Brien, and Barbara Courtney will be denied for two reasons. First, the plaintiffs had no notice or warning that failure to appear might result in dismissal of their action. As discussed above, the Fourth Circuit favors such pre-dismissal warnings. See, e.g., Hathcock, 53 F.3d at 40; Choice Hotels, 11 F.3d at 471;" }, { "docid": "8542856", "title": "", "text": "Sadler, 178 F.R.D. at 59. Second, this case is easily distinguished from those in which dismissal was appropriate in light of repeated failures to appear and numerous refusals to comply with discovery requests. See Carter, 155 F.R.D. at 130; Ham, 1989 WL 46784 at *1. There is no such repeated malfeasance here. This is the first occasion on which each of these three plaintiffs have failed to appear for a deposition. While undoubtedly vexing to HQM and its attorneys, this one act is neither severe or pervasive enough to warrant dismissal. Further, Plaintiffs’ counsel has proffered explanations for the difficulty in scheduling depositions and transporting the plaintiffs to Baltimore. Accordingly, HQM’s motion for sanctions will be denied. The plaintiffs are on notice, however, that further refusal to comply with discovery deadlines may result in dismissal. II. Motion for Court Facilitated Notice to Similarly Situated Employees Plaintiffs have filed this suit for unpaid wages, overtime pay, and liquidated damages pursuant to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq., on behalf of the named plaintiffs and others similarly situated. They also have filed a motion pursuant to § 216(b) for court facilitated notice to similarly situated employees and former employees of HQM. Section 216(b) establishes an “opt-in” scheme whereby potential plaintiffs must affirmatively notify the court of their intention to become a party to the suit. HQM opposes this motion, arguing that the plaintiffs have not alleged a violation of the FLSA, and accordingly, are not entitled to court facilitated notice. For the reasons articulated below, the motion for court facilitated notice will be granted as to HQM’s Bayside facility only. In Hoffmann-La Roche, Inc. v. Sperling, the Supreme Court held that “district courts have discretion, in appropriate cases, to ... facilitate] notice to potential plaintiffs.” 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) (resolving a circuit split as to the application of § 216(b) in cases brought under the ADEA). The relevant inquiry then is not whether the court has discretion to facilitate notice, but whether this is an appropriate case" }, { "docid": "6007230", "title": "", "text": "dismissal of the action and the award of reasonable costs and expenses, including attorneys’ fees. The imposition of sanctions pursuant to Rule 37(b) is left to the sound discretion of the trial court. See, e.g., Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 503 (4th Cir.1977). This court must consider four factors when considering whether to dismiss an action and impose monetary sanctions for failing to comply with a discovery order. Mutual Federal Sav. and Loan Ass’n v. Richards & Assoc., Inc., 872 F.2d 88, 92 (4th Cir.1989).. The factors include: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions. Id. (citing Wilson, 561 F.2d at 503-06). In addition, the Fourth Circuit has emphasized that “courts must precede dismissal with an ‘explicit and clear’ threat to a party that failure to meet certain conditions [or abide by the court’s order] could result in dismissal of the party’s case with prejudice.” Sadler v. Dimensions Health Corp., 178 F.R.D. 56, 59 (D.Md.1998) (citing Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40-41 (4th Cir.1995)). For example, the Fourth Circuit recently approved a default judgment for discovery abuse under Rule 37 where the guilty party stonewalled discovery, failed to comply with a court order, gave meritless excuses, had been warned of the consequences, and had failed to pay prior sanction fees. Anderson v. Foundation for Advancement, Educ. & Employment of Am. Indians, 155 F.3d 500 (4th Cir.1998). B. Analysis In this case, after examining the Fourth Circuit’s Wilson factors, the court is confident that dismissal of Plaintiffs cause of action against both defendants is appropriate. The court will not, however, order Plaintiffs counsel, Laurence D. Colbert, to pay costs and attorneys’ fees to Amtrak or the City. With regard to Amtrak, Magistrate Judge Eliason has recommended that Amtrak be dismissed from the case with preju dice. This" }, { "docid": "8542852", "title": "", "text": "sanction for conduct which abuses the judicial process.”) This discretion diminishes, however, when the requested relief involves a default judgment. See Mutual Fed. Sav. and Loan v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.1989) (“When the sanction involved is judgment by default, the district court’s ‘range of discretion is more narrow' because the district court’s desire to enforce its discovery orders is confronted head-on by the party’s rights to a trial by jury and a fair day in court.” (citation omitted)). When considering dismissal as a discovery sanction, courts apply a four pai't test, known as the “Wilson factors”: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice the noncompliance has caused the other party; (3) the need to deter the particular type of noncompliance; and (4) the effectiveness of less drastic sanctions. Id. (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 503-05 (4th Cir.1977)). This analysis is designed to “insure that only the most flagrant case, where the party’s noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules, will result in the extreme sanction of dismissal or judgment by default.” Id. (citation omitted). HQM cites several cases in which the court has used its discretion to dismiss an action as a consequence to parties who failed to appear for them own depositions. In most of those cases, however, the dismissal followed a pattern of dilatory behavior. See, e.g., Carter v. Prince George’s County, 155 F.R.D. 128, 130 (D.Md.1994) (dismissing plaintiffs complaint without prejudice after she failed to attend two properly noticed depositions, supplement her discovery regarding interrogatories and documents, and pay her experts so that they would appear at deposition); Ham v. United States, 1989 WL 46784, *2 (D.Md. Apr.24, 1989) (dismissing plaintiffs complaint after he failed to appear at four depositions); see also Hyde & Drath v. Baker, 24 F.3d 1162, 1166-67 (9th Cir.1994) (affirming dismissal of complaint where plaintiffs’ delay resulted in a two and a half year delay in discovery); Gordon v. New England Tractor Trailer Training Sch.," }, { "docid": "6007231", "title": "", "text": "to meet certain conditions [or abide by the court’s order] could result in dismissal of the party’s case with prejudice.” Sadler v. Dimensions Health Corp., 178 F.R.D. 56, 59 (D.Md.1998) (citing Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40-41 (4th Cir.1995)). For example, the Fourth Circuit recently approved a default judgment for discovery abuse under Rule 37 where the guilty party stonewalled discovery, failed to comply with a court order, gave meritless excuses, had been warned of the consequences, and had failed to pay prior sanction fees. Anderson v. Foundation for Advancement, Educ. & Employment of Am. Indians, 155 F.3d 500 (4th Cir.1998). B. Analysis In this case, after examining the Fourth Circuit’s Wilson factors, the court is confident that dismissal of Plaintiffs cause of action against both defendants is appropriate. The court will not, however, order Plaintiffs counsel, Laurence D. Colbert, to pay costs and attorneys’ fees to Amtrak or the City. With regard to Amtrak, Magistrate Judge Eliason has recommended that Amtrak be dismissed from the case with preju dice. This court will adopt that portion of the Magistrate’s Recommendation. First, it is clear that Plaintiff has acted in bad faith and callous disregard in failing to produce discovery and comply with this court’s orders. Not only did Plaintiff ignore the Rule 26(f) Pretrial Order, and the November 6, 1998, order, but Plaintiff failed to comply with multiple requests for the discovery made by defense counsel. In addition, Defendants filed Joint Motions to Compel and for Sanctions in an attempt to secure discovery responses from Plaintiff. Plaintiff neither responded to the motions nor produced the discovery. Finally, Plaintiffs attorney, Laurence D. Colbert, was reprimanded for engaging in similar conduct in this court in 1997. See Daye v. General Motors Corp., 172 F.R.D. 173 (M.D.N.C.1997). In Daye, Judge Beaty dismissed the plaintiffs’ action and ordered the plaintiffs’ attorney, Laurence D. Colbert, to pay reasonable expenses, including attorneys’ fees, as an appropriate sanction for the plaintiff and the plaintiffs counsel’s consistent pattern of noncompliance with a pretrial discovery order and for ignoring the defendant’s repeated requests for discovery." }, { "docid": "17878891", "title": "", "text": "defendant filed a motion in October requesting dismissal of the case. Id. The plaintiffs counsel filed a last-minute response to this motion in November which dealt with the cause of the delays, but did not otherwise respond to the defendant’s requests. Id. at 175-76. This Court applied the Mutual Federal test and found (1) that the plaintiff had acted in bad faith in delaying her response to the defendant’s requests for so long, (2) that the defendant had been prejudiced because of its inability to prepare its case without more information about the plaintiffs claims, (3) that there was an important need to deter complete failures to respond to interrogatories, and (4) that less draconian sanctions would not be effective. Id. at 177-78. Other courts within the Fourth Circuit have applied Mutual Federal’s test and then entered default judgment as sanctions against plaintiffs who refused both defendants’ requests and judges’ orders that they appear for depositions. See Robinson v. Morgan, 160 F.R.D. 665, 666 (E.D.N.C.1995); Robinson v. Yellow Freight Sys., 132 F.R.D. 424, 429 (W.D.N.C.1990). In this case, dismissal with prejudice is an appropriate sanction. Ms. Green’s complete failure to provide discovery over eight months after the original requests and over two months after being ordered by Magistrate Judge Eliason to do so satisfies the four-part test required by Mutual Federal. In addition. Ms. Green has already been explicitly warned that her continued failure to provide discovery could lead to such a sanction. The first factor in the Mutual Federal test is satisfied here. Noneompliance with discovery orders can serve as a basis for a finding of bad faith. See Mutual Fed., 872 F.2d at 93. Not only has Ms. Green demonstrated bad faith by her failure to comply with Magistrate Judge Eliason’s order directing her to respond to Chatillon’s interrogatories and requests for documents, she has further acted in bad faith by failing to request more time or even to offer an explanation for her failure to comply. See Yellow Freight Sys., 132 F.R.D. at 428. She has also demonstrated bad faith through repeated but unfulfilled assurances to Chatillon’s" }, { "docid": "4433296", "title": "", "text": "have suffered a substantial amount of prejudice in the form of wasted time, attorneys’ fees, and inability to obtain information necessary to prepare their defense. It is important that litigants be deterred from flouting a magistrate judge’s orders, especially the plaintiff in this case. Parties must follow discovery orders, even if they plan to appeal. In addition, Plaintiffs history has shown that less severe sanctions have simply not worked. Plaintiff, after receiving a money penalty and a warning that her case would be dismissed, failed to appear at her third deposition. Her refusal to cooperate with the magistrate judge’s scheduling order and her failure to follow a direct order regarding her next deposition indicates that dismissal is the only way to preserve the integrity of the justice system in this case. 3. CONCLUSION Plaintiff Viswanathan has demonstrated flagrant bad faith; and callous disregard of her obligation to obey the discovery schedule set out by the magistrate judge, and also a specific, written order to attend a deposition. The magistrate judge’s efforts to induce her cooperation have included a monetary sanction, and even an explicit warning that her case would be dismissed if she did not appear at the third scheduled deposition. These efforts have been unsuccessful. Plaintiffs history reveals that she does not intend to obey the Federal Rules of Civil Procedure or the orders of this Court. Accordingly, the Court in its discretion under Rule 37(b)(2) of the Federal Rules of Civil Procedure will grant Defendants’ Motion to Dismiss. . These motions are: Plaintiff’s Response to Defendants’ Motion for an Extension of Time Allowed to Answer or Otherwise Respond to Complaint (Pleading # 7), Plaintiff's Motion for Class Action Determination under Local Rule 212(b) and Federal Rule 23(c)(1) (# 11), Plaintiff’s First Set of Interrogatories (# 12), Plaintiff’s Motion under Local Rule 108(a)(2) for Extension of Time to Provide Supplementation under Federal Rule 26(e)(2) of a Prior Response to Interrogatories (# 17), Plaintiff’s Motion for Extension of Time to File Reply-Brief in Response to Defendant's Memorandum in Opposition to Plaintiff’s Motion for Class Action Determination (# 18), Plaintiff’s Motion" }, { "docid": "17878890", "title": "", "text": "53 F.3d 36, 40 (4th Cir.1995); see also Sadler v. Dimensions Health Corp., 178 F.R.D. 56, 59-60 (D.Md.1998) (describing emerging trend in Fourth Circuit to consider warning prior to extreme sanctions). Failure to respond to interrogatories can merit dismissal or default. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976); Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir.1983); Daye v. General Motors Corp., 172 F.R.D. 173, 179 (M.D.N.C.1997). Just last year, this Court dismissed a case with prejudice as a sanction for the plaintiffs refusal to comply with the defendant’s discovery requests. See Daye, 172 F.R.D. at 179. The plaintiff in Daye received a set of interrogatories and a request for the production of documents in June of 1996. Id. at 175. The plaintiff missed the July deadline for response without offering any explanation to the defendant’s counsel. Id. After the plaintiff ignored a magistrate judge’s sanctions and order to respond and again offered no explanation for its failure, the defendant filed a motion in October requesting dismissal of the case. Id. The plaintiffs counsel filed a last-minute response to this motion in November which dealt with the cause of the delays, but did not otherwise respond to the defendant’s requests. Id. at 175-76. This Court applied the Mutual Federal test and found (1) that the plaintiff had acted in bad faith in delaying her response to the defendant’s requests for so long, (2) that the defendant had been prejudiced because of its inability to prepare its case without more information about the plaintiffs claims, (3) that there was an important need to deter complete failures to respond to interrogatories, and (4) that less draconian sanctions would not be effective. Id. at 177-78. Other courts within the Fourth Circuit have applied Mutual Federal’s test and then entered default judgment as sanctions against plaintiffs who refused both defendants’ requests and judges’ orders that they appear for depositions. See Robinson v. Morgan, 160 F.R.D. 665, 666 (E.D.N.C.1995); Robinson v. Yellow Freight Sys., 132 F.R.D. 424, 429 (W.D.N.C.1990)." }, { "docid": "8542851", "title": "", "text": "heavy workload, she worked before clocking in. (Id., Berry Dep. at 35). ANALYSIS I. Motion for Sanctions Federal Rule of Civil Procedure 37(d) allows the court to sanction parties who fail “to appear before the officer who is to take the deposition after being served with proper notice ....” These sanctions, outlined at Rule 37(b)(2)(A)-(C), become progressively more severe, ranging from an order establishing certain facts to the entry of a default judgment. HQM has requested that the court impose one of the most severe sanctions — dismissal of their action — upon those plaintiffs who allegedly failed to appear for their depositions. See Fed.R.Civ.P. 37(b)(2)(C)(permitting the court to enter an order “dismissing the action or proceeding or any part thereof’ as a sanction for failure to comply with discovery). Federal district courts possess great discretion to sanction parties for failure to obey discovery orders. See Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 2132-33, 115 L.Ed.2d 27 (1991) (“A primary aspect of th[eir] discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.”) This discretion diminishes, however, when the requested relief involves a default judgment. See Mutual Fed. Sav. and Loan v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.1989) (“When the sanction involved is judgment by default, the district court’s ‘range of discretion is more narrow' because the district court’s desire to enforce its discovery orders is confronted head-on by the party’s rights to a trial by jury and a fair day in court.” (citation omitted)). When considering dismissal as a discovery sanction, courts apply a four pai't test, known as the “Wilson factors”: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice the noncompliance has caused the other party; (3) the need to deter the particular type of noncompliance; and (4) the effectiveness of less drastic sanctions. Id. (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 503-05 (4th Cir.1977)). This analysis is designed to “insure that only the most flagrant case, where the party’s noncompliance represents bad faith and" }, { "docid": "17878889", "title": "", "text": "to comply with discovery ordered by the court. See Fed.R.Civ.Proc. 37(b); Mutual Fed. Sav. & Loan v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir.1989). When a court considers one of these extreme sanctions, its discretion is limited because its “desire to enforce its discovery orders is confronted head-on by the party’s rights to a trial by jury and a fair day in court.” Mutual Fed., 872 F.2d at 92. These competing interests require a court to apply a four-part balancing test before levying a dismissal or a default: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noneomplianee caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions. Id. More recently, the Fourth Circuit has also “emphasized the significance of warning a defendant about the possibility of default before entering such a harsh sanction.” Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40 (4th Cir.1995); see also Sadler v. Dimensions Health Corp., 178 F.R.D. 56, 59-60 (D.Md.1998) (describing emerging trend in Fourth Circuit to consider warning prior to extreme sanctions). Failure to respond to interrogatories can merit dismissal or default. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976); Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir.1983); Daye v. General Motors Corp., 172 F.R.D. 173, 179 (M.D.N.C.1997). Just last year, this Court dismissed a case with prejudice as a sanction for the plaintiffs refusal to comply with the defendant’s discovery requests. See Daye, 172 F.R.D. at 179. The plaintiff in Daye received a set of interrogatories and a request for the production of documents in June of 1996. Id. at 175. The plaintiff missed the July deadline for response without offering any explanation to the defendant’s counsel. Id. After the plaintiff ignored a magistrate judge’s sanctions and order to respond and again offered no explanation for its failure, the" }, { "docid": "4433291", "title": "", "text": "the dismissal of her case, stating, “Plaintiff is forewarned that failure to so appear at her deposition shall be grounds for dismissing her action without further notice.” (Id. at 9). Plaintiff failed to appear at the third scheduled deposition. According to Defendants’ Motion to Dismiss, Plaintiff informed them the night before the third scheduled deposition that she would not appear the next day, citing an unexplained conflict. She did not offer further explanation of this conflict, nor did she inform the court of her reasons for failure to appear. Defendant now moves for dismissal and for monetary sanctions for Plaintiff’s third failure to appear at her deposition. 2. DISCUSSION Rule 37(b)(2) of the Federal Rules of Civil Procedure governs the appropriate sanctions for failure to obey a discovery order, stating in pertinent part: “If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following ... (C) An order ... dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party____” The Fourth Circuit has held that the district court had not abused its discretion by granting the sanction of judgment by default against the defendant for the defendant’s refusal to comply with discovery requests. Mut. Fed. Sav. and Loan Ass’n. v. Richards & Assocs. Inc., 872 F.2d 88 (4th Cir.1989). In the Mutual case, the magistrate judge had threatened to hold the defendants in contempt if they did not perform their discovery obligations. Id. at 90. Later, the judge imposed monetary sanctions and warned the defendants that they could lose by default if they refused to cooperate. Id. The Mutual Court set out the law as regarding the court’s discretion to impose harsh sanctions for a party’s abuse of the discovery process. “Rule 37(d) of the Federal Rules of Civil Procedure gives the district court wide discretion to impose sanctions for a party’s failure to comply with its discovery orders. Thus, it is" }, { "docid": "23080441", "title": "", "text": "deciding which sanctions to impose: In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37(d). If default is caused by counsel’s ignorance of Federal practice, or by his preoccupation with another aspect of the case, dismissal of the action and default judgment are not justified, but the imposition of expenses and fees may well be. (Citations omitted.) See also Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir.1978) (even negligent failure to allow reasonable discovery may be punished). This circuit has upheld a sanction as severe as dismissal for failure to comply with discovery orders. See, e.g., Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir.1981) (dismissal for failure to answer interrogatories); Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir.1964) (dismissal for willful failure to attend deposition), cert. denied, 380 U.S. 956, 85 S.Ct. 1081, 13 L.Ed.2d 972 (1965); Fong v. United States, 300 F.2d 400, 409 (9th Cir.) (entry of default judgment for failure to resume depositions), cert. denied, 370 U.S. 938, 82 S.Ct. 1584, 8 L.Ed.2d 807 (1962). See also Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3d Cir.1979) (dismissal for failure to attend deposition). Other courts have specifically approved the award of attorneys’ fees and costs to a party when the other party fails to appear for its Own deposition. See Weigel v. Shapiro, 608 F.2d 268, 272 (7th Cir.1979) (failure to answer any questions at deposition treated as failure to appear and expenses awarded accordingly); Bosworth v. Record Data of Maryland, Inc., 102 F.R.D. 518 (D.Md.1984) (plaintiff’s financial indigency did not excuse her from liability for costs and fees for failure to attend properly noticed deposition); Bray v. Memphis State University, 88 F.R.D. 90, 91 (W.D.Tenn. 1980) (plaintiff ordered to pay opposing counsel’s travel costs and court reporter’s fees for failure to attend her deposition); Bergeron v. Leo Inns, Inc., 87 F.R.D. 486, 486-87 (M.D.Pa.1980) (although plaintiff also at fault for providing inadequate notice of deposition, defendant ordered to pay plaintiff’s fees for failure to appear)." }, { "docid": "16738001", "title": "", "text": "voluntary dismissal of her suit. IV. A court has discretion to impose sanctions — including dismissal or default — • when a party fails to provide court-ordered discovery or to appear for a deposition. Fed. R.Civ.P. 37(b), 37(d), and 41(b); Mutual Federal Savings & Loan v. Richards & Associates, 872 F.2d 88, 92 (4th Cir.1989); Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 503-06 (4th Cir.1977). When dismissal is contemplated, however, the district court’s discretion is limited, since its “desire to enforce its discovery orders is confronted head-on by the party’s rights to a trial by jury and a fair day in court.” Mutual Federal, 872 F.2d at 92. Thus, a court seeking to impose dismissal as a discovery sanction under Rule 37 must inquire into: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice the noncompliance has caused the adversary, which necessarily in-eludes an inquiry into the materiality of the evidence the party failed to produce; (3) the need for- deterring the particular type of noncompliance; and (4) the effectiveness of less drastic sanctions. Mutual Federal, 872 F.2d at 92; Wilson, 561 F.2d at 503-06. Dismissal with prejudice is ordinarily reserved for the most egregious cases. Dove v. Codesco, 569 F.2d 807, 810 (4th Cir.1978) (dismissal with prejudice under Rule 41(b) only for “clear record of delay or contumacious conduct by the plaintiff”). In a line of eases dealing with defaults and dismissals with prejudice under Rule 37 and Rule 41, the Fourth Circuit has added another factor to the mix, i.e., that district courts must precede dismissal with an “explicit and clear” threat to a party that failure to meet certain conditions could result in dismissal of the party’s case with prejudice. Hathcock v. Navistar Int’l Transportation Corp., 53 F.3d 36, 40-41 (4th Cir.1995) (“this court has emphasized the significance of warning a defendant about the possibility of default [under Rule 37] before entering such a harsh sanction”); Choice Hotels Int’l, Inc. v. Goodwin & Boone, 11 F.3d 469, 471 (4th Cir.1993) (party in case involving prejudicial dismissal under Rule 41 “is" }, { "docid": "23163667", "title": "", "text": "actually ordering it. Hyde & Drath, 24 F.3d at 1167. We conclude that the district court adequately considered the availability of lesser sanctions here. The court declined to impose sanctions after Hwang’s initial failure to appear for deposition. The court, however, explicitly warned that if Hwang failed to make himself available for a rescheduled deposition, sanctions would be forthcoming, “which may include the granting of a default judgment.” After Hwang missed his second deposition date, the court issued an order setting a third and final deposition deadline, imposed a monetary sanction and directed counsel to warn Hwang that his continued intransigence would most likely result in the harsh sanction of default. It was not until Hwang failed to pay the fine, and the'final deposition date passed, that the court decided to enter a default judgment. In so doing, the court commented that “Defendant has been warned on numerous occasions and less drastic sanctions have been administered by the court. However, these warnings have gone unheeded and the attempt at less drastic sanctions has apparently ben [sic] ignored.” On these facts, Hwang should not have been surprised at the sanction of default for his failure to submit to deposition by the deadline imposed by the magistrate judge. See Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1413 (9th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991). We also have no difficulty concluding that Stars was prejudiced by Hwang’s reluctance to be deposed. See Commodity Futures Trading Comm’n v. Noble Metals Int’l, Inc., 67 F.3d 766, 771 (9th Cir.1995) (repeated failure of corporation to designate a representative to testify at a discovery deposition “severely prejudiced” government’s ability to make its case), cert. denied, — U.S. —, 117 S.Ct. 64, 136 L.Ed.2d 26 (1996); Hyde & Drath, 24 F.3d at 1166-67 (failure to appear at depositions prejudiced opposing party); Adriana, 913 F.2d at 1412 (repeated failure of party to appear at scheduled depositions “interfere[d] with the rightful decision of the case”). Hwang’s answer to Stars’ complaint raised several affirmative defenses. We agree with Stars that these defenses could" }, { "docid": "8542853", "title": "", "text": "callous disregard for the authority of the district court and the Rules, will result in the extreme sanction of dismissal or judgment by default.” Id. (citation omitted). HQM cites several cases in which the court has used its discretion to dismiss an action as a consequence to parties who failed to appear for them own depositions. In most of those cases, however, the dismissal followed a pattern of dilatory behavior. See, e.g., Carter v. Prince George’s County, 155 F.R.D. 128, 130 (D.Md.1994) (dismissing plaintiffs complaint without prejudice after she failed to attend two properly noticed depositions, supplement her discovery regarding interrogatories and documents, and pay her experts so that they would appear at deposition); Ham v. United States, 1989 WL 46784, *2 (D.Md. Apr.24, 1989) (dismissing plaintiffs complaint after he failed to appear at four depositions); see also Hyde & Drath v. Baker, 24 F.3d 1162, 1166-67 (9th Cir.1994) (affirming dismissal of complaint where plaintiffs’ delay resulted in a two and a half year delay in discovery); Gordon v. New England Tractor Trailer Training Sch., 168 F.R.D. 178, 181 (D.Md.1996) (fining plaintiff for failure to appear at two scheduled depositions); Viswanathan v. Scotland County Bd. of Educ., 165 F.R.D. 50, 53-54 (M.D.N.C.1995), aff'd by 76 F.3d 377, 1996 WL 36916 (4th Cir. Jan 31, 1996), (dismissing complaint after plaintiff failed to appear for her third deposition and less severe sanctions had no appreciable effect on her intransigence). Additionally, the Fourth Circuit has more recently emphasized the importance of warning a party prior to dismissing its claim as a discovery sanction. See Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40 (4th Cir.1995) (“[Tjhis court has emphasized the significance of warning a defendant about the possibility of default before entering such a harsh sanction.”); Choice Hotels Int’l v. Goodwin and Boone, 11 F.3d 469, 471 (4th Cir.1993) (“The plaintiff is entitled to be made aware of this drastic consequence of failing to meet the court’s conditions at the time the conditions are imposed, when he still has the opportunity to satisfy the conditions and avoid it.”); Sadler v. Dimensions Health" }, { "docid": "23080442", "title": "", "text": "U.S. 938, 82 S.Ct. 1584, 8 L.Ed.2d 807 (1962). See also Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3d Cir.1979) (dismissal for failure to attend deposition). Other courts have specifically approved the award of attorneys’ fees and costs to a party when the other party fails to appear for its Own deposition. See Weigel v. Shapiro, 608 F.2d 268, 272 (7th Cir.1979) (failure to answer any questions at deposition treated as failure to appear and expenses awarded accordingly); Bosworth v. Record Data of Maryland, Inc., 102 F.R.D. 518 (D.Md.1984) (plaintiff’s financial indigency did not excuse her from liability for costs and fees for failure to attend properly noticed deposition); Bray v. Memphis State University, 88 F.R.D. 90, 91 (W.D.Tenn. 1980) (plaintiff ordered to pay opposing counsel’s travel costs and court reporter’s fees for failure to attend her deposition); Bergeron v. Leo Inns, Inc., 87 F.R.D. 486, 486-87 (M.D.Pa.1980) (although plaintiff also at fault for providing inadequate notice of deposition, defendant ordered to pay plaintiff’s fees for failure to appear). Dr. Lew’s failure to attend his deposition could be characterized as “willful.” Although he and his attorney received proper notice of the deposition, they concluded that appearance would be futile because Dr. Lew was not then represented by local counsel. After reaching this conclusion, however, neither Dr. Lew nor his attorney notified opposing counsel of their decision not to attend. In light of this “willful failure,” the sanction the district court imposed was a light one. Even if Dr. Lew’s failure to attend was not willful, however, the sanctions the district court imposed were within the permissible range. Even a negligent failure to allow reasonable discovery may be punished. Marquis, 577 F.2d at 642 (9th Cir.1978). The court considered defendant’s claim for expenses, disallowed some of the fees, and allowed others. We uphold the reasonable expenses the district judge imposed because they were within his discretion under Rule 37(d). AFFIRMED. . On March 31, 1983, defendant Frederick C. Maclnnes filed a motion to dismiss, for summary judgment, and for a more definite statement in which" }, { "docid": "1904511", "title": "", "text": "extension therefore, a complainant who withdraws certain claims in an appeal to the MSPB before a final decision on the merits also fails to exhaust administrative remedies with respect to those particular claims. Plaintiff also counters Defendant’s motion to dismiss by arguing that, when she withdrew her termination claims based on gender and national origin from the MSPB appeal, those claims were still viable in her complaint filed with the NRC’s EEO office. While it is true that a federal employee may either file a mixed case complaint with the employer agency’s EEO office or file a mixed case appeal with the MSPB, that employee may not elect both avenues simultaneously. See 29 C.F.R. 1604.302(a)-(b) (1996); Briggs v. Dalton, 984 F.Supp. 353, 354-55 (D.Md.1997) (citing McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995)); see also Economou, 2000 WL 1844773 at *16. In the present case, Plaintiff pursued her termination claims in a mixed case appeal before the MSPB. Because she withdrew the claims based on gender and national origin from the MSPB appeal, those claims must be dismissed for failure to exhaust administrative remedies. C. Summary Judgment 1. Rule 56(f) Affidavit and Request for Time for Discovery Plaintiff filed an affidavit pursuant to Fed.R.Civ.P. 56(f) stating that discovery has not yet been undertaken in this case and that summary judgment therefore would be premature at this time. Rule 56(f) states that: [s]hould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may or der a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. The Fourth Circuit has held that the party opposing summary judgment is required to “focus our attention on an affidavit ... that particularly specifies legitimate needs for further discovery.” Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir.1995); Fairclough v. Board of County Commissioners of St. Mary’s County, Maryland," } ]

[ { "docid": "7215836", "title": "", "text": "v. Olympia Brewing Co., 550 F.2d 495, 498-500 (9th Cir. 1977) (discussing and applying Brunswick analysis). In In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973), we emphatically re-embraced the target area theory for antitrust standing first set out in Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51, 54-55 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952), and we held that the plaintiff must allege injury “in the area of the economy in which the elimination of competition occurred.” 481 F.2d at 128. We have continually reaffirmed the rule in this circuit. See, e.g., Solinger v. A & M Records, Inc., 586 F.2d at 1310; Bosse v. Crowell, Collier & MacMil-lan, 565 F.2d 602, 606 (9th Cir. 1977); John Lenore & Co. v. Olympia Brewing Co., 550 F.2d at 499; Blankenship v. Hearst Co., 519 F.2d 418, 425-26 (9th Cir. 1975). Although dicta in a footnote in our recent opinion in California State Council of Carpenters v. Associated General Contractors of California, Inc., 648 F.2d 527 (9th Cir. 1980), cert. granted, - U.S. -, 102 S.Ct. 998, 71 L.Ed.2d 292 (1982), indicated some discomfort with the doctrine, we again acknowledged that “[i]n this circuit, legal causation has traditionally been judged under the so-called ‘target area’ test.” Id. at 537. The target area test is not restricted to resolving only clear cases, as the majority suggests, supra, at 1382-83, but rather was adopted carefully as a “logical and flexible tool” far superior to the crude direct injury test, which engaged in a “mere search for labels,” and relied on “certain talismanic rubrics” to determine standing. In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d at 127-28. The target area test embodies this circuit’s balancing of competing policy interests to determine whether a particular claimant falls within the class of persons intended to be protected by the antitrust- laws. The test implicitly enforces Brunswick’s requirement that a plaintiff must allege" } ]

[ { "docid": "3648596", "title": "", "text": "Air Pollution M.D.L. No. 31, 481 F.2d 122, 125-30 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1&73). The case of Loeb v. Eastman Kodak Co., 183 F. 704 (3d Cir. 1910), decided under Section 4’s predecessor in the Sherman Act, is considered to be the genesis of the “direct injury” approach. In that decision the Third Circuit denied standing to a stockholder of a competitor that allegedly had been forced out of business by certain activities of the defendant, Eastman Kodak. The court reasoned that the stockholder could not maintain an individual action because the alleged injury had occurred to the corporation. According to the court, any damage suffered by the plaintiff was “indirect, remote, and consequential.” 183 F. at 709. This decision, then, introduced the notion of privity to the analysis of a person’s standing to sue under the antitrust laws. See In Re Multidis-trict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d at 127. Succinctly stated, the “direct injury” theory is based upon “an analysis of the relationship between the claimant and the alleged antitrust violat- or; if the victim and the perpetrator are separated by an intermediary party, standing is usually denied to the claimant.” Beane, Antitrust: Standing & Passing On, 26 Baylor L.Rev. at 233. “In contrast, courts employing the ‘target area’ approach focus on claimant’s relationship to the area of the economy allegedly injured by the defendant.” In Re Multidistrict Vehicle Air Pollution M.D.L. No. 81, 481 F.2d at 127 — 28. The classic formulation of the test was made in Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51, 54-55 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952), in which the court stated: [T]o state a cause of action under the anti-trust laws a plaintiff must show more than that one purpose of the conspiracy was a restraint of trade and that an act has been committed which harms him. He must show that he is within that area of the economy which is endangered by a breakdown of competitive" }, { "docid": "22983276", "title": "", "text": "on Retail Price-fixing After mid-1972 Blankenship altered his previous 80 percent — -20 percent division of gross proceeds with his carriers and began selling the newspapers outright to the carriers. Appellees argued before the district court and argue here that the only allegations in the complaint were that they attempted to fix the retail price of the paper; that there were no allegations nor evidence that Hearst fixed appellant’s resale price; therefore, since retail sales would be the “affected area of the economy,” the claimed injury to appellant occurred entirely outside that area and standing must be denied. The district court held that Blankenship had no standing to complain about Hearst’s alleged price-fixing after mid-1972. Conference of Studio Unions v. Loew’s, Inc., 193 F.2d 51 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952), established the rule in this circuit that a plaintiff in order to demonstrate standing under the antitrust laws must show that his business was “within that area of the economy which is endangered by a breakdown of competitive conditions in a particular industry.” Id. at 55. The court found the plaintiff labor unions and its members to have suffered nonrecoverable “incidental” damages from an alleged conspiracy to drive certain movie production companies which employed none of the union members out of business. Id. at 54. The court reembraced the “target area” approach in In re Multi-district Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). Under the two-step approach suggested, there must first be an identification of the affected area of the economy which is the target of the alleged anticompetitive conduct. Second, it must be determined whether the alleged injury was within that area. Id. at 129. Blankenship argues that Hearst sought to control the retail price of the newspaper by means directed at Blankenship and other dealers. He details alleged activities by Hearst directed at the dealers which were designed to affect their influence over the prices charged by the carriers. In order to" }, { "docid": "5665001", "title": "", "text": "1168-69 (7th Cir. 1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1791, 60 L.Ed.2d 242 (1979). As the Seventh Circuit Court of Appeals noted in Weit and Lupia, this test is sometimes thought of in terms of standing, and at other times as requiring that direct injury be alleged. The distinction between these two theories is vague at best, and, in this case at least, is of little or no importance. “The fundamental requirement is that plaintiffs establish a sufficient nexus between the defendant’s alleged actions and an injury to plaintiffs.” Weit, 641 F.2d at 469. The Lupia and Weit cases illustrate how this requirement may be applied. In Lupia, the plaintiff, a food distributor, alleged that the defendant, a wholesaler, violated the antitrust laws by granting certain retail outlets a discount and charging it to the plaintiff. In Weit, bank charge card holders brought suit alleging that the defendant banks had conspired to fix the interest rates charged for extended payments. In each case the Seventh Circuit held that the plaintiffs failed to establish that they were directly affected by the defendants’ anticompetitive acts. In Lupia, only retailers who were not given the discount were within the target area. In Weit, only the charge card customers of a particular defendant bank were directly affected — not the plaintiffs, customers of another bank who sought to represent the other customers through a class action. These cases are analogous to the present one. Perry has alleged that Hartz utilizes illegal tactics against retailers to gain control of the market for its products. Perry’s injury, the loss of his job, is not a direct result of Hartz’s alleged anticompetitive activities. Only the retailers subjected to Hartz’s alleged practices could claim direct injury. Only they are in the target area, and Perry may not sue Hartz as their surrogate. The Court is aware that a panel of the Ninth Circuit Court of Appeals, which was a leader in developing the target area test, see In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045," }, { "docid": "9814553", "title": "", "text": "discrimination in price between different purchasers of commodities of like grade or quality where: * * * [T]he effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, de stroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: * * *. [15 U.S.C. § 13(a).] In dismissing the 2(a) claim, Judge Flaum ruled that (a) plaintiff lacked standing to challenge any price discrimination imposed on retailers, and (b) plaintiff had alleged no injury to himself or his business that resulted from defendant’s discriminatory practices. The reason given for lack of standing was that the plaintiff was not within the “target area,” the proper parties with standing being the retailers, not parties here. As to lack of injury, Judge Flaum says plaintiff failed to show he could have sold to the chain stores if the 5 percent discount had not been granted them. Thus, plaintiff does not have any claim under section 2(a). In holding that plaintiff was not within the “target area,” Judge Flaum was not exactly coining a phrase. The authority he refers to, Multidistrict Vehicle Air Pollution M.D.L. No. 31 v. Automobile Manufacturers Ass’n, Inc. 481 F.2d 122 (9th Cir.), cert, denied sub nom. Morgan v. Automobile Mfg. Ass’n, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973), carefully and exhaustively analyses the various circuit positions on “standing to sue,” counting the number that purport to measure standing by the “target area” test and those that require that the statutory “injury” be a “direct” one. In n. 7, p. 127, that court expresses uncertainty about the Seventh Circuit position but considers it closer to “target area” than any other. As stated in Multidistrict Vehicle Air Pollution, supra at 125, the purpose of both standing rules is to limit the “availability of section 4 relief only to those individuals whose protection is the fundamental purpose of the antitrust laws.” It would appear the circuits all view the treble" }, { "docid": "22983277", "title": "", "text": "breakdown of competitive conditions in a particular industry.” Id. at 55. The court found the plaintiff labor unions and its members to have suffered nonrecoverable “incidental” damages from an alleged conspiracy to drive certain movie production companies which employed none of the union members out of business. Id. at 54. The court reembraced the “target area” approach in In re Multi-district Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). Under the two-step approach suggested, there must first be an identification of the affected area of the economy which is the target of the alleged anticompetitive conduct. Second, it must be determined whether the alleged injury was within that area. Id. at 129. Blankenship argues that Hearst sought to control the retail price of the newspaper by means directed at Blankenship and other dealers. He details alleged activities by Hearst directed at the dealers which were designed to affect their influence over the prices charged by the carriers. In order to define the proper limits of the target “area of the economy” one determines what area “could reasonably be foreseen would be affected” by the alleged illegal activity. Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073, 1076 (9th Cir. 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1377, 28 L.Ed.2d 662 (1971); Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 362 (9th Cir. 1955). It would appear in the instant case that Hearst could reasonably foresee that efforts directed at dealers to have the dealers influence their carriers as part of a scheme to control the retail price would affect the dealers. The price the dealers could charge the carriers and thus the dealers’ profits were here directly ’affected by any change in retail price; a fixed retail price would prevent the dealers from charging the carriers a higher price. In addition, the facts of this case as alleged, taking a view favorable to appellant, constitute resale price maintenance. In the fall of 1971 Robert McKinney, a division manager, made a statement to Blankenship that" }, { "docid": "5665003", "title": "", "text": "94 S.Ct. 551, 38 L.Ed.2d 336 (1973), has recently forsaken that approach. In Ostrofe v. H.S. Crocker Co., 670 F.2d 1378 (9th Cir. 1982), the panel majority permitted an employee who alleged he was pressured to resign in retaliation for refusing to take part in anticompetitive practices to bring an antitrust suit against his employer. The decision was based almost exclusively on policy grounds, and it is not without its appeal. However, as Judge Kennedy’s strong dissent notes, the Ostrofe decision is a striking departure from established precedent in its own, and this, circuit. Without an indication that the Seventh Circuit would join in this departure, this Court will not presume to alter this circuit’s settled approach. Perry has not shown that he was in the target area of Hartz’s alleged anticompetitive practices. Therefore, his federal antitrust claim is dismissed. Perry also lacks standing under state antitrust law. The Indiana Antitrust Act, particularly I.C. 24-1-2-1 and 24-1-2-2, is patterned after the Sherman Act. Photovesi Corp. v. Fotomat Corp., 606 F.2d 704 (7th Cir. 1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d 601 (1980); Orion’s Belt, Inc. v. Kayser-Roth Corp., 433 F.Supp. 301 (D.C.S.D.Ind.1977); Citizens Nat’l Bank v. First Nat’l Bank, 165 Ind. App. 116, 331 N.E.2d 471 (1975). Federal case law has been consulted in interpreting the Indiana statute. Citizens Nat’l Bank, 331 N.E.2d at 478-79. Although the standing issue in Citizens Nat’l Bank is not factually analogous, the court’s adherence to the direct-injury requirement, id. at 478-79, supports the notion that federal and state standing tests are essentially the same. Therefore, for the same reasons stated in the discussion of federal antitrust standing, Perry’s state antitrust claim is also dismissed. III. Negligent breach of the duty of good faith In Count IV of his complaint, Perry alleges that Hartz’s acts constituted a negligent breach of its duty of good faith and fair dealing. Indiana does not recognize that such a duty is owed by an employer to an employee at will. See Campbell v. Eli Lilly Co., Ind.App., 413 N.E.2d 1054, 1066-67 (1980) (Ratliff, J., concurring" }, { "docid": "9814554", "title": "", "text": "not have any claim under section 2(a). In holding that plaintiff was not within the “target area,” Judge Flaum was not exactly coining a phrase. The authority he refers to, Multidistrict Vehicle Air Pollution M.D.L. No. 31 v. Automobile Manufacturers Ass’n, Inc. 481 F.2d 122 (9th Cir.), cert, denied sub nom. Morgan v. Automobile Mfg. Ass’n, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973), carefully and exhaustively analyses the various circuit positions on “standing to sue,” counting the number that purport to measure standing by the “target area” test and those that require that the statutory “injury” be a “direct” one. In n. 7, p. 127, that court expresses uncertainty about the Seventh Circuit position but considers it closer to “target area” than any other. As stated in Multidistrict Vehicle Air Pollution, supra at 125, the purpose of both standing rules is to limit the “availability of section 4 relief only to those individuals whose protection is the fundamental purpose of the antitrust laws.” It would appear the circuits all view the treble damages suit as too lethal a cannon to put in the hands of anyone who has suffered only an “indirect,” “secondary,” or “remote” injury. Since Multidistrict Vehicle Air Pollution, supra, which expresses doubt about the position of the Fifth Circuit, that circuit has come down hard for the “target area” test in Jeffrey v. Southwestern Bell, 518 F.2d 1129 (1975). The recent Supreme Court decision, Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), does not speak expressly in terms of standing to sue, but at any rate holds that a conspiracy to fix prices of cement building blocks to general contractors cannot be sued on under section 4 by owners whose cost of new construction may be indirectly enhanced, none of the contractors being parties to the suit. Likewise, not only must the injury be direct, but it must be of the kind the antitrust laws were written to guard against. This was fatal to the suit under section 4 in Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S." }, { "docid": "4433020", "title": "", "text": "... endangered by [the] breakdown of competitive conditions.” Blue Shield of Virginia, Inc. v. McCready, 457 U.S. 465, 480-81, 102 S.Ct. 2540, 2549, 73 L.Ed.2d 149 (1982) (quoting In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 129 (9th Cir.1973)). Furthermore, standing will be denied if the claimed injury is too causally remote from the alleged anticompetitive conduct. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Based on these limitations, employees claiming to have suffered injury as a result of the anticompetitive activities of their employer have almost universally been denied standing under the antitrust laws. See, e.g., In re Industrial Gas Antitrust Litigation, 681 F.2d 514 (7th Cir.1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983) (employee discharged and blacklisted by industry for refusing to participate in antitrust activity lacks standing to bring action against his former employer); McNulty v. Borden, Inc., 542 F.Supp. 655 (E.D.Pa.1982) (no standing for employee discharged for refusing to partic ipate); see also Perry v. Hartz Mountain Corp., 537 F.Supp. 1387 (S.D.Ind.1982). This majority position is followed in the Tenth Circuit. In Reibert v. Atlantic Richfield Co., 471 F.2d 727 (10th Cir.1973), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 399 (1973), the court relied on the limitations explained above to deny standing to an employee who was discharged when his job became redundant due to the allegedly anticompetitive merger of his employer and another company. In Winther v. DEC International, Inc., 625 F.Supp. 100 (D.Colo.1985) the court carefully reviewed the existing law and relied in part on the binding authority of Reibert to hold that a salesman discharged for refusing to enforce his employer’s anticompetitive practice lacked standing under federal and state antitrust laws. Based on this authority and the binding precedent of Reibert, this court finds that Boisjoly has no standing to assert his federal antitrust claim. Boisjoly’s alleged injury — that he is unable to pursue his career due to the emotional injury suffered as a result of the Challenger accident and by being" }, { "docid": "5664998", "title": "", "text": "1054 (1980), transfer denied, 421 N.E.2d 1099 (Ind.1981), the Indiana Court of Appeals equated exercising a statutorily conferred right with fulfilling a statutorily imposed duty, and stated that discharge in retaliation for either falls within the exception. However, the Court of Appeals found that the plaintiff, who charged that he was fired for reporting misconduct in drug research to company officials, had failed to establish either that he had exercised a statutory right or fulfilled a statutory duty. Id., 413 N.E.2d at 1059. In this case, on the other hand, Perry is under a statutory duty to refrain from engaging in conspiracies in restraint of trade. 15 U.S.C. § 1; I.C. 24-1-2-1. By alleging that Hartz discharged him for refusing to continue his participation in an anticompetitive conspiracy, Perry has stated a claim which falls within the Frampton-Campbell exception to the employment at will doctrine. On the wrongful discharge claim, therefore, Hartz’s motion to dismiss is denied. II. Federal and state antitrust violations In Counts II and III of his complaint, plaintiff alleges that Hartz violated state and federal antitrust laws by, among other things, inducing retailers to deal exclusively with Hartz through payoffs and fraudulent credits and attempting to establish tying arrangements between Hartz’s pet care and carpet care products. Hartz responds that Perry has no standing to assert these antitrust claims. Section 4 of the Clayton Act, 15 U.S.C. § 15, allows “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws” to bring a private action. A literal interpretation of this section could lead to a flood of litigation by plaintiffs only indirectly affected by anticompetitive activities. Courts have approached the statutory language in various ways, seeking to make the right-to-sue standard manageable, yet still consistent with the purposes of the antitrust laws. See, e.g., Bravman v. Bassett Furniture Industries, Inc., 552 F.2d 90 (3rd Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 69, 54 L.Ed.2d 80 (1977) (balancing test); Malamud v. Sinclair Oil Corp., 521 F.2d 1142 (6th Cir. 1975) (zone of interests test); Reibert v." }, { "docid": "5530743", "title": "", "text": "25 L.Ed.2d 184 (1970); Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339, 341-44 (9th Cir. 1972). Unfortunately, no “bright line” has yet emerged to divine this group, and courts have formulated varied definitions. In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d 122, 125 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). The key language in Section 4 has been the phrases “business or property” and “by reason of,” which provide the twin requirements for standing. First, a plaintiff must allege an injury to his “business or property” in a strictly commercial sense. See Hawaii, supra, 405 U.S. at 264, 92 S.Ct. 885 (the words “business or property” refer to commercial interests or enterprises). Second, a plaintiff must allege that his injury resulted “by reason of” an antitrust violation. Hawaii, supra, 405 U.S. at 263-64, n.14, 92 S.Ct. 885. In approaching these requirements analytically, courts have tended to adopt one of two methods of analysis: the “direct injury” and the “target area” approaches. See generally L. Sullivan, Antitrust § 227 (1977); A. Stickels, Federal Control of Business: Antitrust Laws § 187 (1972); Sher man, Antitrust Standing: From Loeb to Malamud, 51 N.Y.U.L.Rev. 374 (1976); Lytle & Purdue, Antitrust Target Area Under Section 4 of the Clayton Act: Determination of Standing in Light of the Alleged Antitrust Violation, 25 Am.U.L.Rev. 795 (1976). One court has even adopted the “zone of interests” standing test to be considered in more detail infra. Malamud v. Sinclair Oil Corp., 521 F.2d 1142 (6th Cir. 1975). B. The Direct Injury and Target Area Tests The direct injury test looks primarily at the relationship between plaintiff and the alleged antitrust violator. This test has spawned concern over whether an injury is the direct, indirect, consequential or remote result of the alleged violator’s behavior and has been most recently treated from the perspective of “passing-on” in the Illinois Brick decision, supra. Under the target area test, a court will look at the effect of the alleged violator’s activities within a particular area of the economy in which" }, { "docid": "5665002", "title": "", "text": "that they were directly affected by the defendants’ anticompetitive acts. In Lupia, only retailers who were not given the discount were within the target area. In Weit, only the charge card customers of a particular defendant bank were directly affected — not the plaintiffs, customers of another bank who sought to represent the other customers through a class action. These cases are analogous to the present one. Perry has alleged that Hartz utilizes illegal tactics against retailers to gain control of the market for its products. Perry’s injury, the loss of his job, is not a direct result of Hartz’s alleged anticompetitive activities. Only the retailers subjected to Hartz’s alleged practices could claim direct injury. Only they are in the target area, and Perry may not sue Hartz as their surrogate. The Court is aware that a panel of the Ninth Circuit Court of Appeals, which was a leader in developing the target area test, see In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973), has recently forsaken that approach. In Ostrofe v. H.S. Crocker Co., 670 F.2d 1378 (9th Cir. 1982), the panel majority permitted an employee who alleged he was pressured to resign in retaliation for refusing to take part in anticompetitive practices to bring an antitrust suit against his employer. The decision was based almost exclusively on policy grounds, and it is not without its appeal. However, as Judge Kennedy’s strong dissent notes, the Ostrofe decision is a striking departure from established precedent in its own, and this, circuit. Without an indication that the Seventh Circuit would join in this departure, this Court will not presume to alter this circuit’s settled approach. Perry has not shown that he was in the target area of Hartz’s alleged anticompetitive practices. Therefore, his federal antitrust claim is dismissed. Perry also lacks standing under state antitrust law. The Indiana Antitrust Act, particularly I.C. 24-1-2-1 and 24-1-2-2, is patterned after the Sherman Act. Photovesi Corp. v. Fotomat Corp., 606 F.2d 704 (7th Cir. 1979), cert." }, { "docid": "2670909", "title": "", "text": "individual) must be one against whom the conspiracy is aimed. Or, put in plutonomic terms, the complainant must show that he is within that sector of the economy which is endangered by a breakdown of competitive conditions in a particular industry, (emphasis added) Jeffrey v. Southwestern Bell, 518 F.2d 1129, 1131 (5th Cir.1975). Accord: In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 129 (9th Cir.1973), cert, denied sub nom. Morgan v. Automobile Manufacturing Association, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973) (compilation of cases referring to “direct injury” and “target area” tests). See also: In re Industrial Gas Antitrust Litigation, 681 F.2d 514 (7th Cir.1982); Reading Industries, Inc. v. Kennecott Copper Corp., 631 F.2d 10, 12 (2d Cir.1980); Long Island Lighting Co. v. Standard Oil Co. of Calif., 521 F.2d 1269, 1274 (2d Cir.1975), cert, denied, 423 U.S. 1073, 96 S.Ct. 855, 47 L.Ed.2d 83 (1976); In re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436 (5th Cir.1982); Engine Specialties Inc. v. Bombardier, Ltd., 605 F.2d 1, 18-19 (1st Cir.1979); Schwimmer v. Sony Corp. of America, 637 F.2d 41, 46 (2d Cir.1980); Ostrofe v. H.S. Crocker Co., Inc., 670 F.2d 1378 (9th Cir.1982). Under the “direct injury” test the injury of the § 4 plaintiff must not be too remote from the alleged antitrust violation: The concept of “direct injury,” derived from Loeb v. Eastman Kodak, 183 F. 704 (3rd Cir.1910), focuses on the relationship between the plaintiff and the defendant. If the alleged injury is “remote,” such as that of a stockholder or creditor of a corporation injured by the defendant, standing is denied. Loeb, supra; Gerli v. Silk Association of America, 36 F.2d 959, 960 (S.D.N.Y.1919). Chrysler Corporation v. Fedders Corporation, 643 F.2d 1229, 1233 (6th Cir.1981). The direct injury test, accordingly, injects into the § 4 inquiry concepts of “relationship” very analogous to those of foreseeability developed in doctrines of common law negligence. This Circuit has on two occasions expressly rejected the “direct injury\" and “target area” tests as limiting the § 4 remedy. See: Malamud v. Sinclair Oil Corp.," }, { "docid": "14002715", "title": "", "text": "subsidiary Conn to breach the Supply-Purchase Contract between Conn and Coinart, thereby jeopardizing Coinart’s financial position, and by exerting undue financial pressure on Coinart through strict enforcement of the Loan Agreement and Acceleration Agreement. These actions by Macmillan allegedly were taken for the purpose of ensuring its ability to gain control of Coinart. Plaintiffs thus claimed that Macmillan attempted to, conspired to, and did monopolize the woodwind instrument industry and unreasonably restrained trade in violation of sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2), and specifically intended to lessen competition through its acquisition activities, in violation of section 7 of the Clayton Act (15 U.S.C. § 18). Violation of Arizona’s antitrust laws also was alleged. On Macmillan’s motion, the district court dismissed this count of the complaint for failure to state a claim and for lack of subject matter jurisdiction. We find this disposition correct since plaintiffs lack standing to sue for these alleged antitrust violations. This court repeatedly has used the “target area” approach to antitrust standing under section 4 of the Clayton Act (15 U.S.C. § 15), requiring “identification of the affected area of the economy and then the ascertainment of whether the claimed injury occurred within that area.” In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 129 (9th Cir.), cert. denied sub nom., Morgan v. Automobile Mfrs. Ass’n, Inc., 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973); see Blankenship v. Hearst Corp., 519 F.2d 418, 426 (9th Cir. 1975); In re Western Liquid Asphalt Cases, 487 F.2d 191, 199 (9th Cir. 1973), cert. denied sub nom., Standard Oil Co. et al. v. Alaska et al., 415 U.S. 919, 94 S.Ct. 1419, 39 L.Ed.2d 474 (1974). We have also recently noted that standing is a question of law for the court to determine and that it properly may be denied by pre-trial ruling where the plaintiff is not a “component of the competitive infrastructure” or a “component of competitive significance.” John Lenore & Co. v. Olympia Brewing Co., 550 F.2d 495, 500 (9th Cir. 1977). In our" }, { "docid": "4433021", "title": "", "text": "v. Hartz Mountain Corp., 537 F.Supp. 1387 (S.D.Ind.1982). This majority position is followed in the Tenth Circuit. In Reibert v. Atlantic Richfield Co., 471 F.2d 727 (10th Cir.1973), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 399 (1973), the court relied on the limitations explained above to deny standing to an employee who was discharged when his job became redundant due to the allegedly anticompetitive merger of his employer and another company. In Winther v. DEC International, Inc., 625 F.Supp. 100 (D.Colo.1985) the court carefully reviewed the existing law and relied in part on the binding authority of Reibert to hold that a salesman discharged for refusing to enforce his employer’s anticompetitive practice lacked standing under federal and state antitrust laws. Based on this authority and the binding precedent of Reibert, this court finds that Boisjoly has no standing to assert his federal antitrust claim. Boisjoly’s alleged injury — that he is unable to pursue his career due to the emotional injury suffered as a result of the Challenger accident and by being discredited by MTI — is unrelated to price competition or economic freedom among competitors. It is clearly not the type of anticompetitive injury that the antitrust laws were meant to protect against. In addition, Boisjoly’s claimed injury is not the direct result of the alleged anticompetitive activity. See Illinois Brick Co. v. Illinois, supra. His claim rests on the following causal chain: the alleged anti-competitive practice — the creation and maintenance of MTI’s position as the sole source of SRM’s — led to a defective joint design; the defective joint caused the Challenger accident; the accident led to Boisjoly’s emotional injury and to MTI’s campaign against him; and finally, that the emotional injury and damaged reputation resulted in Boisjoly’s inability to practice his profession, thus injuring him in his business and his property. The claimed injury is simply too causally remote from the alleged anticompetitive act to form the basis for standing. The sole authority in support of Boisjoly’s position is the Ninth Circuit’s decision in Ostrofe v. H.S. Crocker Co., Inc., 670 F.2d 1378" }, { "docid": "3648595", "title": "", "text": "& Passing On, 26 Baylor L.Rev. 331, 332 (1974). Not only is the issue of a plaintiff’s standing to sue more frequently litigated but also the doctrine itself is used more often to dispose of cases at a preliminary stage. The federal courts, as noted in Hawaii v. Standard Oil Co., supra, are in agreement that not every person injured is entitled to the recovery of threefold damages. Specifically, the courts have required private parties to show directness of injury, and this requirement has been incorporated into the standing doctrines which have been used to limit a litigant’s access to the courts under Section 4. The courts, however, disagree as to what constitutes a sufficiently direct causal connection between the alleged injury of a plaintiff and the purportedly unlawful activities of the defendant. As a result, the circuits have devised two distinct standing doctrines that reflect these different concepts of causal directness. These competing theories of standing have been classified generally as the “direct injury” approach and the “target area” approach. In Re Multid-istrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 125-30 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1&73). The case of Loeb v. Eastman Kodak Co., 183 F. 704 (3d Cir. 1910), decided under Section 4’s predecessor in the Sherman Act, is considered to be the genesis of the “direct injury” approach. In that decision the Third Circuit denied standing to a stockholder of a competitor that allegedly had been forced out of business by certain activities of the defendant, Eastman Kodak. The court reasoned that the stockholder could not maintain an individual action because the alleged injury had occurred to the corporation. According to the court, any damage suffered by the plaintiff was “indirect, remote, and consequential.” 183 F. at 709. This decision, then, introduced the notion of privity to the analysis of a person’s standing to sue under the antitrust laws. See In Re Multidis-trict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d at 127. Succinctly stated, the “direct injury” theory is based upon “an analysis of the" }, { "docid": "7829228", "title": "", "text": "target area test; (2) the direct injury test; and (3) the “zone-of-interest” test. All three tests attempt to identify those persons who have suffered an injury which flows from antitrust violations. The target area test focuses on the area affected by the anticompetitive conduct, requiring that the plaintiff be within the area of the economy which was endangered by a breakdown of competition and that plaintiff’s injury be a direct result of the lessening of that competition. In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d 122, 128 (9th Cir.), cert. denied sub nom. Morgan v. Automobile Manufacturing Assoc., 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973), rehearing denied, 414 U.S. 1148, 94 S.Ct. 905, 39 L.Ed.2d 104 (1974). The “zone-of-interest” test, although borrowing language from standing cases decided in the context of administrative law, appears to be similar to the target area test. This test requires that the plaintiff prove a direct and causal relationship between his business or property and the antitrust violations. Malamud v. Sinclair Oil Corp., 521 F.2d 1142, 1145 (6th Cir. 1975). In contrast, the direct injury test, incorporating notions of privity, focuses on the relationship between the injured party and the antitrust violator. In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d 122, 127 (9th Cir.), cert. denied sub nom. Morgan v. Automobile Manufacturing Assoc., 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973), rehearing denied, 414 U.S. 1148, 94 S.Ct. 905, 39 L.Ed.2d 104 (1974). However, not all persons who have suffered an injury flowing from the antitrust violation have standing to sue under § 4. From the class of injured persons suffering an “antitrust injury” only those parties who can most efficiently vindicate the purposes of the antitrust laws have antitrust standing to maintain a private action under § 4. Jeffrey v. Southwestern Bell, 518 F.2d 1129 (5th Cir. 1975). Accord, In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d 122 (9th Cir.), cert. denied sub nom. Morgan v. Automobile Manufacturing Assoc., 414 U.S. 1045, 94 S.Ct." }, { "docid": "5664999", "title": "", "text": "violated state and federal antitrust laws by, among other things, inducing retailers to deal exclusively with Hartz through payoffs and fraudulent credits and attempting to establish tying arrangements between Hartz’s pet care and carpet care products. Hartz responds that Perry has no standing to assert these antitrust claims. Section 4 of the Clayton Act, 15 U.S.C. § 15, allows “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws” to bring a private action. A literal interpretation of this section could lead to a flood of litigation by plaintiffs only indirectly affected by anticompetitive activities. Courts have approached the statutory language in various ways, seeking to make the right-to-sue standard manageable, yet still consistent with the purposes of the antitrust laws. See, e.g., Bravman v. Bassett Furniture Industries, Inc., 552 F.2d 90 (3rd Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 69, 54 L.Ed.2d 80 (1977) (balancing test); Malamud v. Sinclair Oil Corp., 521 F.2d 1142 (6th Cir. 1975) (zone of interests test); Reibert v. Atlantic Richfield Co., 471 F.2d 727 (10th Cir.), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 399 (1973) (direct injury test); Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1377, 28 L.Ed.2d 662 (1971) (reasonable foreseeability test); Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358 (9th Cir. 1955) (target area test). In the Seventh Circuit the prevailing approach is the target area test, which provides that to state an antitrust claim a plaintiff must allege injury which is within the area affected, or intended to be affected, by the defendant’s anticompetitive actions. Illinois v. Ampress Brick Co., 536 F.2d 1163, 1167 (7th Cir. 1976), rev’d on other grounds sub nom. Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); In re Folding Carton Antitrust Litigation, 88 F.R.D. 211, 218 (D.C.N.D.Ill.1980). Sec Weit v. Continental Illinois Nat’l Bank & Trust Co., 641 F.2d 457, 469 (7th Cir. 1981); Lupia v. Stella D’Oro Bisquit Co., 586 F.2d 1163," }, { "docid": "6692537", "title": "", "text": "the antitrust laws. Although volumes have been written on the subject, the common threads that seem to run through each analysis, regardless of the label used by an individual court or commentator, focus on the question of causation in a particular factual context and the notion that the plaintiff’s alleged injury must be of a competitive nature that the antitrust laws were designed to protect against. See Brunswick Corporation v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 696-97, 50 L.Ed.2d 701 (1977); Bichan v. Chemetron Corporation, 681 F.2d 514 (7th Cir. 1982); Weit v. Continental Illinois National Bank & Trust Company, 641 F.2d 457, 469 (7th Cir. 1981), cert, denied, - U.S. -, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982); Mid-West Paper Products Co. v. Continental Group, 596 F.2d 573, 582-83 (3d Cir. 1979). The United States Court of Appeals for the Seventh Circuit, together with courts in several other circuits, apparently utilizes the “target area” approach to determine whether the causation element of standing has been satisfied. The target area test focuses on the relationship between the plaintiff and the area of the economy affected by the defendants’ alleged anticompetitive behavior. Bichan v. Chemetron Corporation, supra, 681 F.2d at 516; In re Multidistrict Vehicle Air Pollution, 481 F.2d 122,127-28 (9th Cir.), cert, denied sub nom., 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973); Conference of Studio Unions v. Loew’s, Inc., 193 F.2d 51, 55 (9th Cir. 1951), cert, denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). If the plaintiff can show that he has suffered injury to his business or property as a consequence of his presence in an area of the economy foreseeably endangered by a breakdown in competitive conditions attributable to the defendant’s actions, he is deemed to be within the target area of the particular substantive antitrust violation alleged. Lupia v. Stella D’Oro Biscuit Company, 586 F.2d 1163, 1168-69 (7th Cir. 1978), cert, denied, 440 U.S. 982, 99 S.Ct. 1791, 60 L.Ed.2d 242 (1979); Solinger v. A&M Records, Inc., 586 F.2d 1304, 1310 (9th Cir. 1978), cert, denied, 441" }, { "docid": "11829413", "title": "", "text": "the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anti-competitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be ‘the type of loss that the claimed violations . . . would be likely to cause.’ Zenith Radio Corp. v. Hazeltine Research, Inc., supra, 395 U.S. [100], at 125, 89 S.Ct. [1562], at 1577 [, 23 L.Ed.2d 129]. (- U.S. at-, 97 S.Ct. at 697) This court has adopted the “target area” approach as a prerequisite to standing in antitrust cases. There must be an identification of the affected area of the economy which is the target of the alleged anticompetitive conduct. And, it must be determined that the alleged injury was in that area. Blankenship v. Hearst Corp., 519 F.2d 418, 426 (9th Cir. 1975); In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d 122,129 (9th Cir.), cert. denied, sub nom. Morgan v. Automobile Manufacturers’ Ass’n, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). The analysis of standing requirements under §§ 4 and 7 does not end here, however. It is not enough to confer standing that plaintiff just prove some injury and show that this injury is within the affected area of the economy. Antitrust violations admittedly create many foreseeable ripples of injury to individuals, but the law has not allowed all of those merely affected by the ripples to sue for treble damages.' Congress, in passing this legislation, did not intend to protect every possible or potential injury which could remotely be connected to a corporate merger or acquisition. Further analysis of the additional requirements needed to confer standing on a plaintiff for a § 4 and 7 claim is set out in Kirihara v. Bendix Corporation, 306 F.Supp. 72 (D.C.Haw.1969), which deals with a factual situation quite similar to the instant case. In Kirihara the plaintiff was the exclusive distributor for Fram oil filters in the State of Hawaii. In 1967 the Fram Corporation was acquired" }, { "docid": "4433019", "title": "", "text": "provides that “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U.S.C. § 15 (1982). Courts have limited this seemingly broad language by allowing standing only if the alleged injury is the type against which antitrust laws were meant to protect and flows from that which makes the defendant’s acts unlawful. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). The Sherman Act’s purpose is to protect consumers from the lack of price competition and to ensure economic freedom to competitors. See Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 538, 103 S.Ct. 897, 908, 74 L.Ed.2d 723 (1983). Courts have generally allowed standing only to direct purchasers of the subject product or competitors in the relevant market, i.e., those “within that area of the economy ... endangered by [the] breakdown of competitive conditions.” Blue Shield of Virginia, Inc. v. McCready, 457 U.S. 465, 480-81, 102 S.Ct. 2540, 2549, 73 L.Ed.2d 149 (1982) (quoting In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 129 (9th Cir.1973)). Furthermore, standing will be denied if the claimed injury is too causally remote from the alleged anticompetitive conduct. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Based on these limitations, employees claiming to have suffered injury as a result of the anticompetitive activities of their employer have almost universally been denied standing under the antitrust laws. See, e.g., In re Industrial Gas Antitrust Litigation, 681 F.2d 514 (7th Cir.1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983) (employee discharged and blacklisted by industry for refusing to participate in antitrust activity lacks standing to bring action against his former employer); McNulty v. Borden, Inc., 542 F.Supp. 655 (E.D.Pa.1982) (no standing for employee discharged for refusing to partic ipate); see also Perry" } ]

[ { "docid": "22917081", "title": "", "text": "this controversy could be thought to spring from anything except one “concerning terms or conditions of employment,” and hence a labor dispute within the meaning of the Norris-LaGuardia Act. The protest stated by the pickets concerned “substandard wages or substandard conditions.” The controversy does involve, as the Act requires, “persons who are engaged in the same industry, trade, craft, or occupation.” And it is immaterial under the Act that the unions and the ship and the consignees did not “stand in the proximate relation of employer and employee.” This case clearly does grow out of a labor dispute within the meaning of the Norris-LaGuardia Act. The District Court held, however, that even if this case involved a labor dispute under the Norris-LaGuardia Act the court had jurisdiction to issue the injunction because the picketing was an “unlawful interference with foreign commerce” and interfered “in the internal economy of a vessel registered under the flag of a friendly foreign power” and prevented “such a vessel from lawfully loading or discharging cargo at ports of the United States.” The Court of Appeals adopted this position, but cited no authority for its statement that the picketing was “unlawful,” nor have the respondents in this Court pointed to any statute or persuasive authority proving that petitioner’s conduct was unlawful. Compare § 20 of the Clayton Act, 29 U. S. C. § 52. And even if unlawful, it would not follow that the federal court would have jurisdiction to enjoin the particular conduct which § 4 of the Norris-LaGuardia Act declared shall not be enjoined. Nor does the language of the Norris-LaGuardia Act leave room to hold that jurisdiction it denies a District Court to issue a particular type of restraining order can be restored to it by a finding that the nonenjoinable conduct may “interfere in the internal economy of a vessel registered under the flag of a friendly foreign power.” Congress passed the Norris-LaGuardia Act to curtail and regulate the jurisdiction of courts, not, as it passed the Taft-Hartley Act, to regulate the conduct of people engaged in labor disputes. As we pointed" } ]

[ { "docid": "6012372", "title": "", "text": "an injunction was contrary to “established principles of labor law” and that the district court was “preempted” from issuing the injunction. Brief for the United States Postal Service at 17. According to appellees, this argument by the Postal Service constitutes a challenge to the jurisdiction of the district court. Brief for Plaintiffs-Appellees at 9. Section 1208(b) of the Postal Reorganization Act gives district courts having personal jurisdiction over the parties subject matter jurisdiction over [sjuits for violation of contracts between the Postal Service and a labor organization representing Postal Service employ-ees____ 39 U.S.C. § 1208(b). We therefore hold that the district court had jurisdiction over the instant case. Moreover, there is no statutory bar to the issuance of an injunction herein since this case is not governed by the Norris-LaGuardia Act, 29 U.S.C. § 104. The NorrisLaGuardia Act specifically states that “[n]o court ... shall have jurisdiction” to issue certain types of injunctions “involving or growing out of any labor dispute.” Id. However, even where the injunction ordered is subject to the Norris-LaGuardia Act, the Supreme Court has approved the exercise of jurisdiction where necessary to preserve the arbitration process. See Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 254, 90 S.Ct. 1583, 1594, 26 L.Ed.2d 199 (1970). Given that the Supreme Court has allowed courts to consider the propriety of issuing an injunction in cases subject to the Norris-LaGuardia Act, where the exercise of jurisdiction is specifically prohibited by statute, id., we hold that the district court in this case, where there is no statutory prohibition, had jurisdiction to determine whether an injunction was warranted herein. Finally, with regard to jurisdiction, neither the pendency of Danko’s unfair labor practice charge before the NLRB (upon which the Board has indicated it will not act until the arbitrator renders a decision), nor the statutory review procedures for challenges to adverse employment action established under the Civil Service Reform Act, 5 U.S.C. § 7701 et seq., deprived the district court of jurisdiction. With regard to the NLRB action, appellees have not litigated the unfair labor practice claim before" }, { "docid": "7010200", "title": "", "text": "employment. (Emphasis added). Thus Norris-LaGuardia is limited to cases “involving or growing out of” a “labor dispute.” Section 13(c) of the Act, 29 U.S.C. § 113(c), defines “labor dispute” as follows: (c) The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee. A panel of this court in 1975 held that a strike to achieve a political goal is a labor dispute within the meaning of the NorrisLaGuardia Act. United States Steel Corp. v. United Mine Workers, 519 F.2d 1236 (5th Cir. 1975), rehearing denied, 526 F.2d 376 (1976), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976). The strike was aimed “at the national policy of this country’s permitting the importation of South African coal.” 519 F.2d at 1247. The panel found that an injunction issued by the district court violated Section 9 of the Norris-LaGuardia Act, 29 U.S.C. § 109, which, like § 4 of the Act, applies only in cases “involving or growing out of a labor dispute.” That decision was rendered on September 24, 1975, after oral argument and submission. Shortly thereafter, another panel of this court considered a similar problem and reached an apparently inconsistent decision. In West Gulf Maritime Ass’n v. ILA, 413 F.Supp. 372 (S.D.Tex.1975), aff’d summarily, 531 F.2d 574 (5th Cir. 1976), the union, in violation of a no-strike agreement, had refused to load grain on a ship bound for the Soviet Union until the president of ILA was satisfied that the interests of the American public were adequately protected. Noting that the underlying dispute involved a political issue, the district court found there was no labor dispute and held Section 4 of the Norris-LaGuardia Act inapplicable. Accord, Harrington & Co. v. ILA, Local 1416, 356 F.Supp. 1079 (S.D.Fla.1973); Khedivial Line, SAE v. Seafarers’ International Union, 278 F.2d 49 (2nd Cir. 1960). Cf. NLRB v. International Longshoremen's Ass’n" }, { "docid": "22463237", "title": "", "text": "decision on an erroneous legal standard or on clearly erroneous findings of fact. Senate of Cal. v. Mosbacher, 968 F.2d 974, 975 (9th Cir.1992); see also Tomco, 853 F.2d at 748 (“We review the ‘just and proper’ prong of the section 10(j) analysis for abuse of discretion.”). “Where the district court is alleged to have relied on erroneous legal premises, review is plenary.” America W. Airlines, Inc. v. National Mediation Bd., 986 F.2d 1252, 1258 (9th Cir.1992). We review de novo issues of law underlying the district court’s preliminary injunction. MAI Sys. Carp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th Cir.1993), cert, dismissed, — U.S. -, 114 S.Ct. 671, 126 L.Ed.2d 640 (1994). IV Section 10(j) is unusual in federal labor law insofar as it authorizes the federal courts to grant injunctive relief in labor disputes. The broad anti-injunction provisions of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §§ 101-115, precluded federal courts from enjoining labor union activities while charges were pending before the Board. In 1947, however, Congress passed the Taft-Hartley Act, Pub.L. No. 80-101, 61 Stat. 136, in part to alleviate the threat that delay in the Board’s processing of unfair labor practice complaints would otherwise pose to the NLRA’s remedial goals. Tafb-Hartley added § 10(j) to the NLRA. It provides: The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper. 29 U.S.C. § 160(j). Taft-Hartley also added § 10(1), which is a related but more limited provision that requires the Board to seek" }, { "docid": "21905775", "title": "", "text": "to file charges and to issue a stipulated cease and desist order. The NLRB had jurisdiction only if there was a labor dispute. Thus we at once hold an occurrence not to be a labor dispute for purposes of the Norris-LaGuardia Act (which emphasizes the breadth of the definition of labor dispute) but to be one for purposes of the National Labor Relations Act (“NLRA”) despite universal recognition that the “definition of ‘labor dispute’ in this Act [NLRA] and in the Norris-LaGuardia Act . .. are virtually identical.” The brutal assault on Cross Construction employees was overt criminal conduct that should also have been and was prosecuted by state law enforcement authorities. The Act permits injunctive intervention only when “public officers charged with thé duty to protect complainant’s property [and, we submit, their persons] are unable or unwilling to furnish adequate protection,” 29 U.S.C. § 107(e), against future, not past unlawful activity. The Supreme Court has just reaffirmed the broad interpretation of the definition of labor dispute in the Norris-LaGuardia Act which has been the law since the Act was passed. Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Association, - U.S. -, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982). As reported in the majority opinion (fn. 14), the Court held that a dispute involving the refusal to load cargo to Russia in protest of Soviet intervention in Afghanistan was a labor dispute within the meaning of the Act. The majority opinion relies upon the Court’s statement that the employer-employee relationship was the “matrix” of the dispute in Jacksonville Bulk Terminals. First, it needs to be emphasized that, as pointed out above, a unionized workforce was the “matrix” of the dispute in the instant case — clearly a labor dispute objective. Second, the matrix statement must be taken in the context that Jacksonville Bulk Terminals was a dispute between employers and their employees. As has been shown above, the employer-employee relationship is not a requirement to establish a labor dispute under the Act. Indeed, to show the breadth of the definition of labor dispute in the Act, the opinion in Jacksonville" }, { "docid": "22336967", "title": "", "text": "a test relying on the relative weight of a ship’s foreign as compared with its American contacts. That test led the Board to conclude here, as in West India Fruit & Steamship Co., supra, that the foreign-flag ships’ activities affected “commerce” and brought them within the coverage of the Act. Where the balancing of the vessel’s contacts has resulted in a contrary finding, the Board has concluded that the Act does not apply. Six years ago this Court considered the question of the application of the Taft-Hartley amendments to the Act in a suit for damages “resulting from the picketing of a foreign ship operated entirely by foreign seamen under foreign articles while the vessel [was] temporarily in an American port.” Benz v. Compania Naviera Hidalgo, supra, at 139. We held that the Act did not apply, searching the language and the legislative history and concluding that the latter “inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions.” Id., at 144. Subsequently, in Marine Cooks & Stewards v. Panama S. S. Co., 362 U. S. 365 (1960), we held that the Norris-LaGuardia Act, 29 U. S. C. § 101, deprived a Federal District Court of jurisdiction to enjoin picketing of a foreign-flag ship, specifically limiting the holding to the jurisdiction of the court “to issue the injunction it did under the circumstances shown.” Id., at 372. That case cannot be regarded as limiting the earlier Benz holding, however, since no question as to “whether the picketing . . . was tortious under state or federal law” was either presented or decided. Ibid. Indeed, the Court specifically noted that the application of the Norris-LaGuardia Act “to curtail and regulate the jurisdiction of courts” differs from the application of the Taft-Hartley Act “to regulate the conduct of people engaged in labor disputes.” Ibid.; see Comment, 69 Yale L. J. 498, 523-525 (1960). It is contended that this case is nonetheless distinguishable from Benz in two respects. First, here there is a fleet of vessels not temporarily in United States waters but operating" }, { "docid": "22100936", "title": "", "text": "requires a jury trial as it would be to insist that Norris-LaGuardia bars the issuance of any injunctions in the first place. Section 10 (l), of course, does not so provide; we think it reasonably clear from that and related sections and from their legislative history that this result is precisely what Congress intended. The Wagner Act made employers subject to court orders enforcing Board cease-and-desist orders. Those orders, or many of them, were of the kind NorrisLaGuardia, on its face, prohibited; but § 10 (h) of the Wagner Act provided that in “granting appropriate temporary relief or a restraining order, or . . . enforcing ... or setting aside ... an order of the Board, . . . the jurisdiction of courts sitting in equity shall not be limited, by” 29 U. S. C. §§ 101-115. In 1947, in passing the Taft-Hartley Act as part of the Labor Management Relations Act, Congress provided for unfair labor practice proceedings against unions; and § 10 (j) gave jurisdiction to the courts to issue injunctions in unfair labor practice proceedings, whether against unions or management, pending final disposition by the Board. Section 10 (l) made special provision for interim injunctions “notwithstanding any other provision of law” in particular kinds of unfair labor practice proceedings against unions. Section 10 (h) was retained in its original form. No party in this case suggests that the injunctions authorized by Congress in 1935 and 1947 were subject to the jurisdictional and procedural limitations of NorrisLaGuardia. Neither can it be seriously argued that, at the time of enactment of the Wagner and Taft-Hartley Acts, civil or criminal contempt charges arising from violations of injunctions authorized by those statutes were to be tried to a jury. The historic rule at the time was that, absent contrary provision by rule or statute, jury trial was not required in the case of either civil or criminal contempt. See Green v. United States, 356 U. S. 165, 183, 189 (1958). Section 11 of Norris-LaGuardia, 29 U. S. C. § 111 (1946 ed.), required jury trials in contempt actions arising out of" }, { "docid": "22100940", "title": "", "text": "orders of enforcement and review proceedings, making inapplicable the provisions of the Norris-LaGuardia Act in proceedings before the courts, were unchanged either by the House bill or by the Senate amendment, and are carried into the conference agreement.” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 57 (1947) (emphasis added). Such also was the understanding of Senator Ball, unchallenged on this point by his colleagues on the floor of the Senate during the debate on Taft-Hartley. Senator Ball stated: “[T]he . . . Norris-LaGuardia Act is completely suspended ... in the current National Labor Relations Act whenever the Board goes into court to obtain an enforcement order for one of its decisions. Organized labor did not object to the suspension of the Norris-LaGuardia Act in that case, I suppose presumably because under the present act the only ones to whom it could apply are employers. Organized labor was perfectly willing to have the NorrisLaGuardia Act completely wiped off the books when it came to enforcing Board orders in labor disputes against employers.” 93 Cong. Rec. 4835 (1947). This statement was made in the context of Senator Ball’s explanation of his proposed amendment to § 10 (l) as reported out of committee. That section provided generally that the Board would be required, under certain circumstances, to seek injunctive relief in the federal courts against secondary boycotts and jurisdictional strikes “notwithstanding any other provision of law ....'' Senator Ball's proposed amendment would have had two effects; first, it would have permitted private parties, in addition to the Board, to seek injunctive relief against the identical practices directly in the District Court; and, second, the amendment would have left in effect for such proceedings the provisions of §§11 and 12 of the Norris-LaGuardia Act, giving defendants in such proceedings the right to a jury trial. As Senator Ball stated: “[W]hen the regional attorney of the NLRB seeks an injunction [pursuant to § 10 (7) as reported] the Norris-LaGuardia Act is completely suspended .... We do not go quite that far in our amendment. We simply provide that the Norris-LaGuardia Act shall" }, { "docid": "22100937", "title": "", "text": "labor practice proceedings, whether against unions or management, pending final disposition by the Board. Section 10 (l) made special provision for interim injunctions “notwithstanding any other provision of law” in particular kinds of unfair labor practice proceedings against unions. Section 10 (h) was retained in its original form. No party in this case suggests that the injunctions authorized by Congress in 1935 and 1947 were subject to the jurisdictional and procedural limitations of NorrisLaGuardia. Neither can it be seriously argued that, at the time of enactment of the Wagner and Taft-Hartley Acts, civil or criminal contempt charges arising from violations of injunctions authorized by those statutes were to be tried to a jury. The historic rule at the time was that, absent contrary provision by rule or statute, jury trial was not required in the case of either civil or criminal contempt. See Green v. United States, 356 U. S. 165, 183, 189 (1958). Section 11 of Norris-LaGuardia, 29 U. S. C. § 111 (1946 ed.), required jury trials in contempt actions arising out of labor disputes. But §11 was among those sections which § 10 (h) expressly provided would not limit the power of federal courts to enforce Board orders. Moreover, § 11 was limited by its own terms and by judicial decision to cases “arising under” the Norris-LaGuardia Act. United States v. Mine Workers, 330 U. S. 258, 298 (1947). Injunctions issued pursuant to either the Wagner Act or Taft-Hartley Act were not issued “under,” but in spite of Norris-LaGuardia; and contempt actions charging violations of those injunctions were not “cases arising under” Norris-LaGuardia. Section 11 of Norris-LaGuardia was thus on its face inapplicable to injunctions authorized by the Wagner and Taft-Hartley Acts; petitioners do not contend otherwise. They say: “From the effective date of Taft-Hartley in late summer, 1947, until June 28, 1948, the effective date of the new § 3692, an alleged contemnor of a TaftHartley injunction would probably have been denied the jury trial guaranteed by § 11 of Norris-LaGuardia, because the injunction would not have been one arising under Norris-LaGuardia itself.” Brief for Petitioners" }, { "docid": "7633294", "title": "", "text": "observed in the Plain Dealer opinion; [T]here is a clear difference between a labor dispute which results from a work stoppage and a work stoppage which is the result of a labor dispute arising from conditions of employment. . . . The latter is enjoinable . . . [not] the former. . . . 520 F.2d at 1227. . One case supporting the Company’s position is Armco Steel Corp. v. United Mine Workers of America, 505 F.2d 1129 (4th Cir. 1974). In that case, the Fourth Circuit found that the district court had the power to enjoin the miners’ refusal to cross stranger picketlines established by unidentified pickets. However, in Buffalo Forge, Armco was listed among the decisions which the Court said were at odds with the opinion which it affirmed. 428 U.S. at 404 n. 9, 96 S.Ct. 3141. The Court also expressly overruled the assumption made in Arm-co that a mandatory arbitration clause implies a duty not to engage in sympathy strikes. Id, at 408 n. 10, 96 S.Ct. 3141. . If the stranger pickets are engaged in a . secondary boycott, the employer may pursue remedies before the National Labor Relations Board alleging violation of § 8(b)(4) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4) (1970). The Board is required to give expedited treatment to a secondary boycott charge and, if there is “reasonable cause to believe such charge is true,” the Board must go to court and seek an injunction under § 10(1) of the Act. 29 U.S.C. § 160(f) (1970). If violence is threatened, § 7 of the Norris-LaGuardia Act permits injunctive relief to clean up the line. See generally Abrams, supra, at 195 n. 92, 197 n. 104, 210 n. 158. . Overbreadth and vagueness are distinct concepts: Analytically, the broadness of an injunction refers to the range of proscribed activity, while vagueness refers [to] the particularity with which the proscribed activity is described. Developments in the Law — Injunctions, 78 Harv.L.Rev. 994, 1064 (1965). “Vagueness” is a question of notice, i.e., procedural due process, and “broadness” is a matter of substantive" }, { "docid": "23473869", "title": "", "text": "Labor Management Relations Act, it is unlawful for any labor organization to engage in any activity or conduct prohibited by 29 U.S.C § 158(b) (4), i. e. a secondary boycott or a jurisdictional strike. Under § 303(b), “[wjhoever shall be injured in his business or property” by a secondary boycott or a jurisdictional strike may sue the union therefor within the limitations of 29 U.S.C. § 185 and “shall recover the damages by him sustained and the cost of the suit.” The Union’s first contention is that Mason-Rust’s complaint should have been dismissed because the NLRB did not first determine in a § 10 (k) hearing that the Union’s conduct constituted an unfair labor practice under 29 U.S.C. § 158(b) (4) (ii) (D). The Supreme Court expressly rejected this contention in International Longshoremen’s Union v. Juneau Spruce Corp., 342 U.S. 237, 244, 72 S.Ct. 235, 96 L.Ed. 275 (1952) (footnote omitted): “The fact that the Board must first attempt to resolve the dispute by means of a § 10 (k) determination before it can move under § 10(b) and (c) for a cease and desist order is only a limitation on administrative power. * * * These provisions, limiting and curtailing the administrative power, find no counterpart in the provision for private redress contained in § 303(a) (4).” Although § 303 was amended in 1959 so that the unfair labor practices covered were incorporated into § 303 by reference to 29 U.S.C. § 158(b) (4) rather than by express enumeration, we think it clear that the doctrine of Juneau Spruce is valid today. See Plumbers & Fitters, Local 761 v. Matt J. Zaich Const. Co., 418 F.2d 1054, 1056, 1057 (9th Cir. 1969). The Union next contends it did not call, authorize, participate in, or ratify the strike or work stoppage. The Union admits that there was a jurisdictional dispute at the Gateway project and that it did claim that certain work assigned to carpenters should have been performed by laborers. It also admits that as a result of the assignment of certain work to carpenters by Mason-Rust, laborers employed" }, { "docid": "22100935", "title": "", "text": "certain procedural formalities are satisfied. It contains no exceptions with respect to injunctions in those labor disputes dealt with by the Wagner Act, passed in 1935, or by the Taft-Hartley Act passed in 1947. Yet those Acts expressly or impliedly, Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235 (1970), authorized various kinds of injunctions in labor dispute cases and expressly or impliedly exempted those injunctions from the jurisdictional and procedural limitations of Norris-LaGuardia to the extent necessary to effectuate the provisions of those Acts. The crucial issue is whether in enacting the Wagner and Taft-Hartley Acts, Congress not only intended to exempt the injunctions they authorized from NorrisLaGuardia’s limitations, but also intended that civil and criminal contempt proceedings enforcing those injunctions were not to afford contemnors the right to a jury trial. Surely, if § 10 (i) of Taft-Hartley had expressly provided that contempt proceedings arising from the injunctions which the section authorized would not be subject to jury trial requirements, it would be as difficult to argue that § 3692 nevertheless requires a jury trial as it would be to insist that Norris-LaGuardia bars the issuance of any injunctions in the first place. Section 10 (l), of course, does not so provide; we think it reasonably clear from that and related sections and from their legislative history that this result is precisely what Congress intended. The Wagner Act made employers subject to court orders enforcing Board cease-and-desist orders. Those orders, or many of them, were of the kind NorrisLaGuardia, on its face, prohibited; but § 10 (h) of the Wagner Act provided that in “granting appropriate temporary relief or a restraining order, or . . . enforcing ... or setting aside ... an order of the Board, . . . the jurisdiction of courts sitting in equity shall not be limited, by” 29 U. S. C. §§ 101-115. In 1947, in passing the Taft-Hartley Act as part of the Labor Management Relations Act, Congress provided for unfair labor practice proceedings against unions; and § 10 (j) gave jurisdiction to the courts to issue injunctions in unfair" }, { "docid": "7010219", "title": "", "text": "Frankfurter & N. Greene, The Labor Injunction 24-46, 131-33, 200-02 (1930). See also A. Cox, D. Bok, R. Gorman, Cases on Labor Law 60 (8th ed. 1977); O. Fiss, Injunctions 580-612 (1972); Statutory History of the United States: Labor Organizations 161-247 (R. Koretz ed. 1970). . The Supreme Court in Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976) cited this court’s decision in United States Steel Corp. as “in accord” with the Second Circuit decision affirmed by the Supreme Court in Buffalo Forge. 428 U.S. at 404 n.9, 96 S.Ct. at 3146 n.9, 49 L.Ed.2d at 1028 n.9. . Whether a dispute involving a political question is “in commerce” within the meaning of the provisions of the Labor Management Relations Act (LMRA) regulating secondary boycotts is a different question, which we consider separately in the cases of Baldovin v. International Longshoremen’s Ass’n, 626 F.2d 445 (5 Cir.) and Mack v. International Longshoremen’s Ass’n, 626 F.2d 445 (5 Cir.). Although the LMRA reaches activities “in commerce” to the full extent of the Congressional power under the commerce clause, NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963), a labor dispute does not automatically come within the jurisdiction confines of the Act. Windward Shipping (London) Ltd. v. American Radio Ass’n, 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195 (1974). Whether an activity constitutes a labor dispute is an inquiry separate and distinct from the effect of that activity on commerce. “The National Labor Relations Act does not extend to all industries and all employees. It is only applicable to those employments in which strikes and labor disputes would affect interstate commerce . . . .” Alabama State Federation of Labor, Local No. 103 v. McAdory, 325 U.S. 450, 464, 65 S.Ct. 1384, 1391, 89 L.Ed. 1725 (1945). . “In the course of enacting the Taft-Hartley Act, Congress rejected the proposal that the Norris-LaGuardia Act’s prohibition against labor-dispute injunctions be lifted to the extent necessary to make injunctive remedies available in federal courts for the purpose of" }, { "docid": "23588948", "title": "", "text": "U.S.C. § 157 grants employees the right to engage in collective bargaining or to refrain from doing so. Section 158(b)(1)(A) grants the Board power to proceed against union tactics involving violence, intimidation, and threats which tend to coerce employees in the exercise of their rights under section 157. N.L.R.B. v. Driver’s Local 639, 362 U.S. 274, 290, 80 S.Ct. 706, 715, 4 L.Ed.2d 710, 721 (1960). Section 160(j), added to the National Labor Relations Act by the Taft-Hartley amendments in 1947, grants federal district courts jurisdiction to grant “such temporary relief or restraining order as it deems just and proper” at the behest of the Board pending adjudication of an outstanding complaint pending before it. Whether to seek an injunction under section 160(j) is discretionary with the Board. Section 160(h) provides that the jurisdiction of a court granting temporary relief or restraining orders under section 160 is not affected by sections 101 through 115 of the Title 29, the NorrisLaGuardia Act. The Norris-LaGuardia Act broadly prohibited federal courts from exercising jurisdiction in labor disputes, though we note that restraint of violence is excepted from its operation. 29 U.S.C. § 107; cf. 29 U.S.C. § 104. Initially in this appeal the Union argued that the procedural limitations of the Norris-LaGuardia Act applied to district courts’ actions under section 160(j). In light of the Supreme Court’s decision in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed. 319 (1975), which held that section 160(h) makes all provisions of the Norris-LaGuardia Act inapplicable to section 160 proceedings, it has now properly abandoned this position. Section 160(1) is similar to section 160(j) in that it grants district courts jurisdiction to provide relief from certain unfair labor practices. Its primary thrust is directed against secondary boycotts. It differs from section 160(j) in that it does not make the decision to seek relief discretionary with the Board but rather mandates action whenever after investigation a regional attorney has reasonable cause to believe that a charge within the scope of the subsection is true. The district court does not need to wait to act until" }, { "docid": "21489649", "title": "", "text": "court of the United States whose jurisdiction has been or may be conferred or defined or limited by Act of Congress, including the courts of the District of Columbia. Mar. 23, 1932, c. 90, § 13, 47 Stat. 73.” In light of the history underlying the passage of this Act especially the unions’ prior unsuccessful attempt, in Sections 6 and 20 of the Clayton Act (38 Stat. 731 and 738), to remove the federal courts from the injunction granting business in a similarly described context, we are not surprised to find a paucity of decisions dealing directly with the question of whether so-called “secondary boycott” activity of employees and unions may be within the protection of NorrisLaGuardia. Like Justice Frankfurter, reputedly the author of the Act, we would have assumed that the jurisdictional limitations of Norris-LaGuardia apply to secondary boycotts, see Bakery Sales Drivers Union v. Wagshal, 333 U.S. 437, 442, 444, 68 S.Ct. 630, 92 L.Ed. 792 (1948); Amalgamated Ass’n of Street, Electric Ry. & Motor Coach Employees v. Dixie Motor Coach Corp., 170 F.2d 902 (8 Cir., 1948). However, since there appears to be no authoritative Supreme Court holding to this effect and since the contrary proposition was so forcefully argued by appellees, we proceed to examine the merits of this question. Before passing, it should be emphasized that we here deal only with the enjoin-ability of appellants’ activity and not with, its legality for any other purpose. At first blush, giving the terms of the Act their literal meaning, this appears to be a “case involving or growing out of a labor dispute” (Section 4, 29 U.S.C.A. Section 104), since it “involves persons who are engaged in the same industry, trade, craft, or occupation” (Section 13, 29 U.S.C.A. Section 113). Accordingly, a literal reading of the Act would prevent any federal court from issuing an injunction “to prohibit any person or persons participating or interested in such dispute * * * from * * * giving publicity to the existence of, or the facts involved in, any labor dispute * * * by advertising * * *" }, { "docid": "22326118", "title": "", "text": "Taft-Hartley Act. This injunction was vacated, but immediately re-entered, on October 3, 1952. The IAM appealed to the Missouri Supreme Court from the Circuit Court’s injunction. That court affirmed the permanent injunction on February 8, 1954, more than a year after the Board found no violation of § 8 (b) (4)(D). The Missouri Supreme Court held that the IAM’s conduct constituted a violation of the State’s restraint of trade statute and as such was enjoinable. It referred to the ruling of the Board as a determination that “no labor dispute existed between these parties and that no unfair labor practices were there involved, and the Board, upon such ruling, quashed the notice of the hearing.” The court then stated: “The cases relied on by the defendants [the IAM] are largely cases involving existing labor disputes and unfair labor practices. We think those cases are not in point.” The court concluded: “A jurisdictional quarrel between two rival labor unions is not a labor dispute within the Norris-LaGuardia Act, . . . the Wagner Act or the Taft-Hartley Act.” 364 Mo. 573, 584, 586, 265 S. W. 2d 325, 332, 333. The State Supreme Court thus treated the Board’s holding as a determination that the allegation on which the injunction issued excluded the basis for a charge of an unfair labor practice under the Taft-Hartley Act. The principal question that the case raises, whether the state court had jurisdiction to enjoin the IAM’s conduct or whether its jurisdiction had been pre-empted by the authority vested in the National Labor Relations Board, has an importance in the federal-state relations regarding industrial controversies that led us to grant certiorari. 348 U. S. 808. The Court has had numerous occasions to deal with this delicate problem of the interplay between state and federal jurisdiction touching labor relations. It is helpful to a consideration of this latest phase briefly to summarize where our decisions, under both the Wagner Act and the Taft-Hartley Act, have brought us. 1. The Court has ruled that a State may not prohibit the exercise of rights which the federal Acts protect." }, { "docid": "21560100", "title": "", "text": "agreement to the “arbitration procedure of that agreement” and, (2) in the event of a dispute as to whether further disputes were within the scope of this injunction, to “seek appropriate declaratory relief as to the scope of this Order.” The injunction enjoined them from (1) “engaging in any work stoppages over any differences or local trouble, concerning either (a) the discipline of employees for excessive absenteeism and/or for participation in illegal work stoppages, and/or (b) any other local issues currently in dispute ..., which the parties are contractually obligated to arbitrate,” (2) “[communicating ... in any manner to express or infer that a work stoppage against or involving [Westmore-land] is in progress,” and (3) “[i]nducing, instructing, persuading or encouraging [Westmoreland’s] employees ... to engage in a work stoppage.” In the event of future work stoppages, the injunction ordered District 28, the local unions, and their respective officers to (1) “[p]roceed immediately to the areas where the work stoppages are taking place and instruct those engaging in the work stoppages ... to cease and desist from such violations of this Preliminary Injunction,” (2) “[c]onduct meetings to inform their members that such work stoppages violate this Preliminary Injunction,” and (3) place “advertisements on area radio stations instructing ... Union members to return to work.” This appeal followed. II. Section 4 of the Norris-LaGuardia Act sharply curtailed the authority of courts to issue restraining orders or injunctions against unions or their members for participation in a strike arising out of a labor dispute. 29 U.S.C.A. § 104 (West 1973). “Congress adopted this broad prohibition to remedy the growing tendency of federal courts to enjoin strikes by narrowly construing the Clayton Act’s labor exemption from the Sherman Act’s prohibition against conspiracies to restrain trade.” Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 708, 102 S.Ct. 2672, 2678, 73 L.Ed.2d 327 (1982) (citations omitted). The Supreme Court has consistently interpreted the anti-injunction provisions of the Norris-LaGuar-dia Act broadly and has recognized exceptions only to accommodate paramount federal policies. Id.; see, e.g., Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398" }, { "docid": "7010218", "title": "", "text": "enforce the award against any subsequent violation after the current work stoppage ceased. The award of Arbitrator McAulay in the NOSSA suit is similarly applicable to subsequent disputes. . The distinction has been criticized as having “no real content” because all communication involves conduct. L. Tribe, American Constitutional Law 599 et seq. (1978). . Because we are here discussing constitutional power, we do not pause to consider statutory restrictions on the judiciary such as those imposed by the Norris-LaGuardia Act, 29 U.S.C. § 104. We will, however, hereafter consider the effect of that statute on court action. . See Note, Buffalo Forge Co. v. United Steelworkers: The Supreme Court Sanctions Sympathy Strikes, 25 Clev.St.L.Rev. 435 (1976). Congress intended to take the federal courts out of the “labor injunction business.” Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 369, 80 S.Ct. 779, 783, 4 L.Ed.2d 797 (1960); S.Rep. No. 163, 72d Cong., 1st Sess. 7-8 (1932); H.R.Rep. No. 669, 72d Cong., 1st Sess. 2-3 (1932); 75 Cong.Rec. 5464, 5467, 5478 (1932). See F. Frankfurter & N. Greene, The Labor Injunction 24-46, 131-33, 200-02 (1930). See also A. Cox, D. Bok, R. Gorman, Cases on Labor Law 60 (8th ed. 1977); O. Fiss, Injunctions 580-612 (1972); Statutory History of the United States: Labor Organizations 161-247 (R. Koretz ed. 1970). . The Supreme Court in Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976) cited this court’s decision in United States Steel Corp. as “in accord” with the Second Circuit decision affirmed by the Supreme Court in Buffalo Forge. 428 U.S. at 404 n.9, 96 S.Ct. at 3146 n.9, 49 L.Ed.2d at 1028 n.9. . Whether a dispute involving a political question is “in commerce” within the meaning of the provisions of the Labor Management Relations Act (LMRA) regulating secondary boycotts is a different question, which we consider separately in the cases of Baldovin v. International Longshoremen’s Ass’n, 626 F.2d 445 (5 Cir.) and Mack v. International Longshoremen’s Ass’n, 626 F.2d 445 (5 Cir.). Although the LMRA reaches activities “in commerce” to the" }, { "docid": "7876961", "title": "", "text": "(6th Cir.1997). An abuse of discretion exists when the district court “applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” Id. This court will also review the district court’s findings of fact for clear error, and its conclusions of law de novo. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir.1996). Finally, this court will conduct a de novo review of the district court’s interpretation of a collective bargaining agreement. Salary Policy Employee Panel v. Tennessee Valley Auth., 149 F.3d 485, 489 (6th Cir.1998). III. A. A district court has the authority under § 301 to compel specific performance of a collective bargaining agreement requiring the arbitration of grievances in a labor dispute. See 29 U.S.C. § 185(a). However, § 4 of the NorrisLaGuardia Act, 29 U.S.C. § 104, significantly curtails a district court’s ability to issue an injunction against labor strikes and work stoppages. The pertinent portion of the Act reads: No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute ... from ... (e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence[.] 29 U.S.C. § 104. This court has recognized that the “anti-injunction provisions of the Norris-LaGuardia Act were intended to protect workers in the exercise of organized economic power.” Crowe & Assocs., Inc. v. Bricklayers & Masons Union Local No. 2 (In re Crowe & Assocs., Inc.), 713 F.2d 211, 216 (6th Cir.1983) (per curiam). As the Supreme Court stated: “Congress acted to prevent injunctions of the federal courts from upsetting the natural interplay of the competing economic forces of labor and capital.” Brotherhood of R.R. Trainmen v. Chicago River, 353 U.S. 30, 39, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). Occasionally, § 301 of the LMRA and § 4 of the Norris-LaGuardia Act" }, { "docid": "20789159", "title": "", "text": "this court. Plaintiffs further claim that the court lacks jurisdiction over this matter for the reason that no “labor dispute” exists between defendant and plaintiffs. They argue that the National Labor Relations Act is intended to regulate the conduct of people engaged in “labor disputes”, as defined by section 2(9) of the Act; and that the Act confers jurisdiction over only those complaints which present a controversy related to the resolution of such a “dispute”, as defined. In support of their position, plaintiffs rely upon N. L. R. B. v. Inter national Longshoremen’s Association, 332 F.2d 992 (4th Cir. 1964). The Fourth Circuit, in refusing to enforce an order of the Board, there held that since the union activity complained of (a refusal by the ILA to service any ship which was trading with Cuba) was political activity not intended to alter terms and conditions of employment, no labor dispute existed, and the Board lacked jurisdiction to enter its order. Plaintiffs’ reliance upon the I.L.A. case is misplaced for three reasons. The Supreme Court, in the case of Marine Cooks v. Panama S.S. Co., 362 U.S. 365, 370, 80 S.Ct. 779, 4 L.Ed.2d 797 (1960) decided that facts very similar to the ones at bar constituted a “labor dispute” within the meaning of the NLRA. Moreover, the facts of the case at bar differ significantly from the facts present in I.L.A. The controlling factor in I.L.A. was the longshoremen’s political animus against Cuba; here, it is not alleged that the unions bear Liberia any particular ill will: the stated goal of their picketing was to secure employment for more members of their union. Thus, while the motivation for the boycott in I.L.A. was political, the motivation here is economic, in the normal sense of the word, and mandates a determination that a “labor dispute” does exist. In addition, even if it be assumed that the facts at bar do resemble those in I.L.A., the holding of I.L.A. need not be followed. The Courts of Appeal for the District of Columbia, the Second Circuit, and the Eighth Circuit have either flatly" }, { "docid": "22100934", "title": "", "text": "the issuance of injunctions in any case growing out of a labor dispute; here, the injunction issued under § 10 (l) arose out of a labor dispute in the most classic sense and hence contempt proceedings were subject to § 3692’s requirement for jury trial. Were we to consider only the language of § 3692, we might be hard pressed to disagree. But it is not unusual that exceptions to the applicability of a statute’s otherwise all-inclusive language are not contained in the enactment itself but are found in another statute dealing with particular situations to which the first statute might otherwise apply. Tidewater Oil Co. v. United States, 409 U. S. 151 (1972); MacEvoy Co. v. United States ex rel. Tomkins Co., 322 U. S. 102 (1944). The Norris-LaGuardia Act, 47 Stat. 70, as amended, 29 U. S. C. § 101 et seq., for example, categorically withdraws jurisdiction from the United States courts to issue any injunctions against certain conduct arising out of labor disputes and permits other injunctions in labor disputes only if certain procedural formalities are satisfied. It contains no exceptions with respect to injunctions in those labor disputes dealt with by the Wagner Act, passed in 1935, or by the Taft-Hartley Act passed in 1947. Yet those Acts expressly or impliedly, Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235 (1970), authorized various kinds of injunctions in labor dispute cases and expressly or impliedly exempted those injunctions from the jurisdictional and procedural limitations of Norris-LaGuardia to the extent necessary to effectuate the provisions of those Acts. The crucial issue is whether in enacting the Wagner and Taft-Hartley Acts, Congress not only intended to exempt the injunctions they authorized from NorrisLaGuardia’s limitations, but also intended that civil and criminal contempt proceedings enforcing those injunctions were not to afford contemnors the right to a jury trial. Surely, if § 10 (i) of Taft-Hartley had expressly provided that contempt proceedings arising from the injunctions which the section authorized would not be subject to jury trial requirements, it would be as difficult to argue that § 3692 nevertheless" } ]

[ { "docid": "22144668", "title": "", "text": "cause such “likelihood,” the owner of the registered trademark is entitled to relief. To determine whether there is a likelihood of confusion under the trademark statute, courts generally consider a number of factors, which the district court, relying on Sun-Fun Products v. Suntan Research & Development, 656 F.2d 186, 189 (5th Cir.1981), phrased as follows: a) the strength or distinctiveness of the mark; b) the similarity of the two marks; c) the similarity of the goods/services the marks identify; d) the similarity of the facilities the two parties use in their businesses; e) the similarity of the advertising used by the two parties; f) the defendant’s intent; g) actual confusion. We follow the district court in applying generally these factors, but we do so with the caution expressed in Modular Cinemas of America, Inc. v. Mini Cinemas Corp., 348 F.Supp. 578, 582 (S.D.N.Y.1972), that “[n]ot all these [factors] are always relevant or equally emphasized in each case.” A. The first and paramount factor under this set of factors is the distinctiveness or strength of the two marks. In determining such question, the courts have classified marks submitted for registration into four groups in an ascending order of strength or distinctiveness: 1. generic; 2. descriptive; 3. suggestive; and 4. arbitrary or fanciful. Abercrombie & Fitch Co. v. Hunting World, Inc., 189 U.S.P.Q. 759, 537 F.2d 4, 9 (2nd Cir.1976). The primary point of disagreement in this case, as it was developed by the district court, was whether the plaintiffs mark was descriptive or suggestive. The importance of this conflict in terms between descriptive or suggestive lies in the strength or weakness to be assigned marks satisfying the definitions of those respective terms and the nature of the protection afforded the trademark owner. As the court stated in Del Laboratories, Inc. v. Alleghany Pharmacal Corp., 516 F.Supp. 777, 780 (S.D.N.Y.1981): “ ... a mark which is merely descriptive is considered to be weak and cannot be accorded trade mark protection without proof of secondary meaning, whereas a mark which is either suggestive or arbitrary is strong and presumptively valid.” Gilson in his" } ]

[ { "docid": "2857646", "title": "", "text": "its product.” Playtex Prods. Inc. v. Georgia-Pacific Corp., 390 F.3d 158, 161 (2d Cir.2004). Because a determination of the likelihood to confuse consumers test is closely related to a determination on the protectability of the trademark, we turn to the likelihood to confuse test first. A. Polaroid Factors When determining the likelihood of confusion between two marks, courts consider: (1) the strength of the plaintiffs mark; (2) the similarity of the parties’ marks; (3) the proximity of the parties’ products in the marketplace; (4) the likelihood that the plaintiff will “bridge the gap” between the products; (5) actual consumer confusion between the two marks; (6) the defendant’s intent in adopting the mark;(7) the quality of the defendant’s product; and (8) the sophistication of the relevant consumer group. See Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 46 (2d Cir.2000) (citing Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir.1961)) (emphasis added). Where the predicate' facts are beyond dispute, the evaluation of these factors is a question of law for the court. See Nabisco, 220 F.3d at 46. No single factor is dispositive; “the ultimate question of whether consumers are likely to be confused” is the primary focus for the court. See Playtex Prods. Inc., 390 F.3d at 162. (1) Protectability and Strength of defendants’ mark When evaluating the strength of a mark, courts look at its “inherent distinctiveness” and “acquired distinctiveness.” The inherent distinctiveness of a mark also determines its protectability. The scale of inherent distinctiveness, listed from least to most: “(1) generic; (2) descriptive; (3) suggestive; and (4) arbitrary or fanciful.” TCPIP Holding Co., Inc. v. Haar Commc’ns, Inc., 244 F.3d 88, 93 (2d Cir.2001) (citations omitted). Generic marks are marks “consisting of words that identify the type or species of goods or services to which they apply, [and] are totally lacking in distinctive quality....” TCPIP Holding Co., 244 F.3d at 93. Generic marks are never protectable. “A mark is descriptive if it describes the product’s features, qualities, or ingredients in ordinary language or describes the use to which the product is put.” Lane Capital Mgmt. Inc." }, { "docid": "4166183", "title": "", "text": "spectrum focusing on, the. inherent potential distinctiveness of the term; and (2) commercial strength, i.e., the marketplace’s recognition as of the time the mark is asserted in litigation. See George, 575 F.3d at 393. Commercial strength is the more important aspect, .because “a conceptually strong mark that is relatively unknown in the marketplace will not be likely to cause any confusion among consumers of other products.” Renaissance, 405 F.Supp.2d at 690. Neither aspect weighs in plaintiffs favor with regard to a likelihood of confusion. To begin with, the parties’ “VIVE” marks are conceptually weak. A mark’s conceptual strength falls into one of four classifications along a spectrum of increasing distinctiveness: (1) generic; (2)' descriptive; (3) suggestive; and (4) arbitrary or fanciful. See George, 575 F.3d at 394. Normally, the PTO’s registering of a trademark is prima fade evidence of that mark’s conceptual strength because the PTO registers only fanciful, arbitrary or suggestive marks, or descriptive marks shown to have acquired secondary meaning. Id. at 395. Yet, the conceptual strength of a commonly-used mark decreases as the number of third-party registrations increases. In this respect, “[a] strong trademark is one that is rarely used by parties other than the owner of the trademark, while a weak trademark is one that is often used by other parties.” CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263, 269 (4th Cir. 2006) (finding no likelihood of confusion between the parties’ “First Care” and “CareFirst” marks). The Fourth Circuit has also expressed doubt whether an abbreviation that merely describes the underlying product can be anything more than descriptive. See George, 575 F.3d at 395 n.12 (noting that the abbreviation “LCR” for “Left Center Right” is likely “a descriptive term”). Here, the “VIVE” mark is conceptually weak. This is so because the undisputed factual record reflects (1) that the PTO has registered the mark “VIVE” or its variants for use by more than 64 companies, (2) that at least 36 companies use the “VIVE” mark in the same markets that plaintiff claims to serve, (3) that at least nine of those marks are registered" }, { "docid": "21839708", "title": "", "text": "of the consuming public. George & Co. LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 393 (4th Cir. 2009). “Not all of these factors will be relevant in every trademark dispute, and there is no need for each factor to support [the plaintiffs] position on the likelihood of confusion issue.” Synergistic, 470 F.3d at 171. The parties agree that factors (3), (4), (5), and (8) weigh in favor of finding a likelihood of confusion because the products are nearly identical and are sold in similar facilities with similar advertising. The district court, therefore, rested its conclusion that Grayson O had not established a likelihood of confusion on factors (1), (2), (6), and (7): the strength of Grayson O’s mark, the similarities between the marks, Aga-dir’s intent, and evidence of confusion. Accordingly, we turn to those factors. A. The first factor—the strength of Grayson O’s mark—is “paramount” in determining the likelihood of confusion. Pizz eria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir. 1984). If a mark lacks strength, a consumer is unlikely to associate the mark with a unique source and consequently will not confuse the allegedly infringing mark with the senior mark. A mark’s strength comprises both conceptual strength and commercial strength. CareFirst, 434 F.3d at 269. i. “Measuring a mark’s conceptual or inherent strength focuses on the linguistic or graphical ‘peculiarity’ of the mark, considered in relation to the product, service, or collective organization to which the mark attaches.” Id. (citation omitted) (quoting Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)). Part of this determination involves placing the mark “into one of four categories of distinctiveness: (1) generic; (2) descriptive; (3) suggestive; or (4) arbitrary or fanciful.” George, 575 F.3d at 393-94. Generic marks, like “bleach,” are “never entitled to trademark protection” because they are not distinctive. Id. at 394. Descriptive marks “merely describe a function, use, characteristic, size, or intended purpose of the product,” such as “5 Minute glue” or “After Tan post-tanning lotion.” Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 464 (4th Cir. 1996). Because descriptive marks" }, { "docid": "21060845", "title": "", "text": "goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties’ sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of function; (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant’s market, or that he is likely to expand into that market. Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir.1983). “Not all factors must be given equal weight. The weight given to each factor in the overall picture, as well as the weighing for plaintiff or defendant, must be done on an individual fact-specific basis.” Checkpoint Systems, 269 F.3d at 280 (internal citations omitted). “[W]hen products directly compete, mark similarity may be the most important of the ten factors in Lapp. ” Id. at 281 (internal citations omitted). The analysis of the Lapp factors follows. i. Similarity. The first and most important Lapp factor is similarity between the marks. Contrary to Tillery’s puzzling contention that the marks are identical, TILLERY (or M.KELLY TILLERY) and “leonardtillery.com” are only slightly similar; they share what might be perceived as one element of a compound name. ii. Strength. A strong trademark “carries widespread, immediate recognition that one producer ... is associated with the mark, and so with the product.... The strength of a mark is determined by (1) the distinctiveness or conceptual strength of the mark and (2) its commercial strength or marketplace recognition.” Checkpoint Systems, 269 F.3d at 282 (internal citations omitted). Personal names are generally considered descriptive and not inherently strong. If a last name used as a mark is a common last name, or used by" }, { "docid": "5381989", "title": "", "text": "descriptive mark, which is conceptually weak, can have its overall strength as a mark bolstered by its commercial success. See, e.g., Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1144 (9th Cir.2002) (recognizing that an otherwise inherently weak mark “may be strengthened by such factors as extensive advertising, length of exclusive use, public recognition” (citation and internal quotation marks omitted)); GoTo.com, 202 F.3d at 1208 (stating that GoTo’s “tremendous success” strengthened its otherwise suggestive mark); Brookfield, 174 F.3d at 1058 (noting that “placement within the conceptual distinctiveness spectrum is not the only determinant of a mark’s strength, as advertising expenditures can transform a suggestive mark into a strong mark where, for example, that mark has achieved actual marketplace recognition” (internal citation omitted)); Sleekcraft, 599 F.2d at 350 (stating that a suggestive mark may be strengthened by advertising; otherwise the weak mark is “entitled to a restricted range of protection”). But we have never held that an arbitrary or fanciful mark (i.e., a conceptually strong mark) can have its overall strength diminished by feeble commercial success. We decline to do so today. Rather, we hold that a lack of commercial strength cannot diminish the overall strength of a conceptually strong mark so as to render it undeserving of protection. Otherwise, a mark which is conceptually strong may never have the opportunity to blossom into its full commercial potential through effective marketing. That being said, we conclude that the first Sleekcraft factor weighs in M2 Software’s favor, and that the district court properly considered the overall strength of the M2 mark. Indeed, the district court acknowledged that M2 Software’s M2 mark was fanciful, federally-registered, and incontestable. The district court then weighed the remaining Sleekcraft factors based on the overall strength of the M2 mark, and the court focused on the ultimate question posed by the Sleekcraft analysis: the likelihood of confusion as to the source of the product. ii. Proximity of Goods When dealing with the second Sleekcraft factor, the courts assess whether the goods are related or complementary. Sleekcraft, 599 F.2d at 350. Where the goods are related or complementary, the" }, { "docid": "859750", "title": "", "text": "Judge Friendly wrote that the likelihood of confusion as to product source should be evaluated by balancing the following factors: (1) the strength of the prior owner’s mark, (2) the similarity between the two marks, (3) the competitive proximity of the products, (4) the likelihood that the prior user will bridge the gap, (5) actual confusion, (6) the defendant’s good faith, (7) the quality of the defendant’s product, and (8) the sophistication of the buyers. 287 F.2d at 495. This list is not exhaustive and “ ‘no single Polaroid factor is determinative.’ ” W.W.W. Pharmaceutical, 984 F.2d at 572 (citation omitted). Strength of the Mark The focus under this factor is on the “distinctiveness of the mark, or more precisely, its tendency to identify the goods sold under the mark as emanating from a particular, although possibly anonymous source.” McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d 1126, 1131 (2d Cir.1979). Turning on its “origin indicating quality in the eyes of the purchasing public,” a mark’s strength is assessed using two factors: (i) the degree to which it is inherently distinctive and (ii) the degree to which it is distinctive in the marketplace. Id. at 1131-33. To gauge the inherent distinctiveness of a mark, courts use the same continuum of four categories — generic, descriptive, suggestive, and arbitrary or fanciful — set forth in Abercrombie & Fitch. 537 F.2d at 9. The parties dispute whether the Boar’s Head Marks are suggestive, on the one hand, or arbitrary, on the other, as to the products they designate, namely, food products such as slicing meats and cheeses, hot dogs, hamburger and condiments. Since the consumption of wild boar and, more particularly, ham cheeks is limited in this country, the argument that the marks are suggestive is the less persuasive. However, regardless of whether the Boar’s Head Marks are arbitrary or suggestive, they may be considered inherently distinctive as long as they are more than descriptive, which the parties here agree they are. McGregor-Doniger, 599 F.2d at 1132. A finding that a mark is inherently distinctive does not guarantee a determination that the mark" }, { "docid": "20136133", "title": "", "text": "962 F.2d 316, 320 (4th Cir.1992); see also id. (noting that the Pizzeria Uno factors are not meant to be a rigid formula for infringement; they are “only a guide — catalog of various considerations that may be relevant in determining the ultimate statutory question of likelihood of confusion”). However, evidence of actual confusion is “often paramount” in the likelihood of confusion analysis. Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir.2001); see also Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 937 (4th Cir.1995) (noting that the actual confusion factor is “entitled to substantial weight as it provides the most compelling evidence of likelihood of confusion”). The first likelihood of confusion factor focuses on the strength of the mark. Generally, the stronger the mark, the greater the likelihood that consumers will be confused by competing uses of the mark. Strength consists of both conceptual strength and commercial strength. CareFirst, 434 F.3d at 269. A mark’s conceptual strength is determined in part by its placement into one of four categories of distinctiveness: (1) generic; (2) descriptive; (3) suggestive; or (4) arbitrary or fanciful. Pizzeria Uno, 747 F.2d at 1527. A generic mark describes a product in its entirety, Sara Lee, 81 F.3d at 464 n. 10, and, therefore, “neither signifies the source of goods nor distinguishes the particular product from other products on the market.” Retail Servs., 364 F.3d at 538. Unlike distinctive marks, a generic mark is never entitled to trademark protection. See id. (referring to a generic mark as the “antithesis of a distinctive mark”). Examples of generic marks are bleach, copiers, cigarettes, and cars. Fanciful marks, which are inherently distinctive, typically involve made-up words created for the sole purpose of serving as a trademark. See Sara Lee, 81 F.3d at 464 (noting that Clorox®, Kodak®, Polaroid®, and Exxon® are fanciful marks). Arbitrary marks, which are also inherently distinctive, typically involve common words that have no connection with the actual product, as “they do not suggest or describe any quality, ingredient, or characteristic,” so the mark can be" }, { "docid": "543611", "title": "", "text": "in favor of a finding that defendant’s mark is likely to cause confusion concerning the origin of its services. b. Element (2) The second element, the strength of a mark, is “a measure of the mark’s distinctiveness, ‘or more precisely, its tendency to identify the goods sold under the mark as emanating from a particular, although possibly anonymous, source.’ ” Accu Personnel, 823 F.Supp. at 1165 (quoting McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d 1126, 1131 (2d Cir.1979)). Thus, “the true relative strength of a mark can only fully be determined by weighing two [the conceptual and the commercial] aspects of strength.” 1 McCarthy § 11.25[2] at 11-137. The conceptual aspect is the placement of the mark on the distinctiveness spectrum, that is, deciding whether the mark is “fanciful,” “arbitrary,” “suggestive,” “descriptive,” or “generic.” The commercial aspect is the recognition value of the mark in the relevant market. Id. “In addition, the use of a mark by third parties may impact its strength.” Accu Personnel, 823 F.Supp. at 1165. The Court has previously held plaintiffs mark is arbitrary. As such, it is inherently distinctive and a relatively strong mark. It remains for the Court to address the second aspect of the mark’s strength, its “actual consumer recognition value” as of this litigation. 1 McCarthy § 11.25[2] at Ills?. Recognition value is low “if the mark lacks significance in the marketplace for identifying the origin of the goods.” Id. (quoting Oxford Industries, Inc. v. JBJ Fabrics, Inc., 6 U.S.P.Q.2d 1756, 1988 WL 9959 (S.D.N.Y.1988)). That significance is determinable, in part, through advertising and sales. As McCarthy notes, “[m]any arbitrary ... terms may be conceptually and inherently strong, but if they receive little publicity through only meager advertising and feeble sales, they are relatively weak marks in the place where it counts: the marketplace.” Id. at 11-137-138. Plaintiff offers evidence of advertising and sales which are anything but “meager” and “feeble.” Since its incorporation over five years ago, plaintiff has spent “in excess of $100,000 dollars [sic] on advertising and various promotions that emphasized ... its name and mark.” D.I. 15 at" }, { "docid": "3046158", "title": "", "text": "made a false identification.” (internal quotation marks omitted)). “De minimis evidence of actual confusion does not establish the existence of a genuine issue of material fact regarding the likelihood of confusion.” Universal Money Ctrs., 22 F.3d at 1535. After carefully reviewing the record, we have found that plaintiff has put into evidence, at most, only seven examples of actual confusion. This handful of anecdotal evidence is de minimis and does not support a finding of a genuine issue of material fact as to the likelihood of confusion, especially in light of the complete lack of similarity between the defendants’ uses and plaintiffs mark. See id. at 1535-36 (“The de minimis evidence of actual confusion is especially undermined in this case by the sheer lack of similarity between the marks.”). F. Strength of Plaintiffs Mark The stronger a trademark, the more likely that encroachment upon it will lead to sponsorship confusion. See First Sav. Bank, 101 F.3d at 653. “A strong trademark is one that is rarely used by parties other than the owner of the trademark, while a weak trademark is one that is often used by other parties.” Id. (internal quotation marks and citation omitted). To assess the relative strength of a mark, one must consider the two aspects of strength: (1) “Conceptual Strength: the placement of the mark on the [distinctiveness or fanciful-suggestive-descriptive] spectrum;” and (2) “Commercial Strength: the marketplace recognition value of the mark.” McCarthy, supra, § 11:83. Under the conceptual strength prong, the categories, in descending order of strength, are: fanciful; arbitrary; suggestive; descriptive; and generic. See id. § 11:1; see also Heartsprings, 143 F.3d at 555. “ ‘Fanciful’ marks consist of ‘coined’ words that have been invented or selected for the sole purpose of functioning as a trademark.” McCarthy, supra, § 11:5. “Arbitrary marks comprise those words, symbols, pictures, etc., that are in common linguistic use but which, when used with the goods or services in issue, neither suggest nor describe any ingredient, quality or characteristic of those goods or services.” Id. § 11:11. Suggestive marks are those that suggest some quality or ingredient of" }, { "docid": "1318804", "title": "", "text": "Placid Oil Co., 932 F.2d 394, 398 (5th Cir.1991)). Thus, if, based on the undisputed facts in the summary judgment record, no reasonable jury could find a likelihood of confusion, summary judgment is appropriate. (i) The Strength or Distinctiveness of the Mark The Fourth Circuit has emphasized that the strength or distinctiveness of the mark is the “paramount factor” in determining likelihood of confusion. Pizzeria Uno, 747 F.2d at 1527. See also Lone Star, 43 F.3d at 933; Sara Lee, 81 F.3d at 467 (describing the strength of the mark as the “alpha of infringement analysis”). In evaluating the strength of a mark, it is useful to consider two separate categories of a mark’s strength: (1) conceptual strength: the placement of the mark along a spectrum focusing on the inherent potential distinctiveness of the term; and (2) commercial strength: the marketplace’s recognition as of the time the mark is asserted in litigation. Of these two considerations, the second is more important, because a conceptually weak but commer- dally strong mark can still gain protection through secondary meaning, as illustrated by such examples as AMERICAN Airlines, PAYLESS Drug Stores and KENTUCKY FRIED CHICKEN. See McCarthy on Trademarks § 11:83. On the other hand, a conceptually strong mark that is relatively unknown in the marketplace will not be likely to cause any confusion among consumers of other products. Id. To afford protection to marks simply on the basis of their conceptual distinctiveness would be contrary to the ultimate inquiry under this factor, namely, “the degree to which the designation is associated by prospective purchasers with a particular source.” Petro Stopping, 130 F.3d at 93 (quoting Estee Lauder, Inc. v. The Gap, Inc., 108 F.3d 1503, 1510 (2d Cir.1997)). Normally, the fact that the PTO has registered the trademark is persuasive evidence of a mark’s conceptual strength because the PTO registers only fanciful, arbitrary or suggestive marks, or descriptive marks shown to have acquired secondary meaning. Lone Star, 43 F.3d at 934. Indeed, as described above, the word RENAISSANCE is “suggestive” as that term has been defined. However, the categories of distinctiveness are" }, { "docid": "3225992", "title": "", "text": "incontestible pursuant to 15 U.S.C. §§ 1065 and 1115(b), the district court properly limited its inquiry to the “likelihood of confusion” element. Courts consider seven factors in evaluating whether a competing mark creates a likelihood of confusion: 1) The strength or distinctiveness of the mark; 2) The similarity of the two marks; 3) The similarity of the goods or services the marks identify; 4) The similarity of the facilities the two parties use in their businesses; 5) The similarity of the advertising used by the two parties; 6) The defendant’s intent; 7) Actual confusion. Pizzeria Uno, 747 F.2d at 1527. These factors will not be of equal relevance in every case. Lone Star, 43 F.3d at 933. Indeed, “[c]ertain factors may not be germane to every situation,” and certain factors other than those listed above may be relevant to the “likelihood of confusion” analysis in certain cases. Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463 (4th Cir.1996). RGC contends that the district court misapplied these factors in certain respects to such an extent that it committed legal error. We will consider each element in turn. 1. RGC contends that the district court improperly weighed the strength of the “Renaissance” mark, and that it placed too much emphasis on the “strength of the mark” element in analyzing the likelihood of confusion. The district court began its evaluation of the mark’s strength by noting our statement in Pizzeria Uno that the “first and paramount factor under this set of factors is the distinctiveness or strength of the two marks.” Pizzeria Uno, 747 F.2d at 1527. It then proceeded to apply the two-factor test set forth in CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263 (4th Cir.2006). Under that test, the court considers (1) the conceptual strength of the mark, and (2) the commercial strength of the mark. Id. at 269. A mark’s conceptual strength is determined in part by its placement into one of four categories of distinctiveness: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. Pizzeria Uno, 747 F.2d at 1527. Suggestive and" }, { "docid": "8689466", "title": "", "text": "“likelihood of confusion” inquiry: (1) the strength or distinctiveness of the plaintiffs mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; (7) actual confusion; (8) the quality of the defendant’s product; and (9) the sophistication of the consuming public. Id. The Fourth Circuit has emphasized, however, that “[t]his judicially created list of factors is not intended to be exhaustive or mandatory,” and that “not all factors are relevant in every ease.” Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144, 154 (4th Cir.2012) (internal citation and quotation marks omitted) (holding that the district court did not commit reversible error in only addressing three factors on summary judgment). Of all the factors, “evidence of actual confusion is ‘often paramount’ in the likelihood of confusion analysis.’ ” George & Co., LLC, 575 F.3d at 393. With these principles in mind, the court concludes that the facts set forth in the amended complaint are sufficient to support the assertion that the defendants used the AvePoint mark in a manner likely to confuse consumers. AvePoint alleges that it has owned the AvePoint mark for over five years, that the mark is inherently distinctive, and that it has used, and continues to use, the mark in connection with its own goods and services in interstate commerce. AvePoint further alleges that the defendants used the AvePoint mark with the specific intent to cause confusion as to AvePoint’s affiliation with Jim Chung and the commercial services offered through the fake Jim Chung account. While the defendants may ultimately prove otherwise, the court is convinced that the allegations in the amended complaint plausibly suggest that the defendants acted with the requisite intent. Additionally, and perhaps most importantly, AvePoint alleges that the defendants’ use of the AvePoint mark has resulted in actual confusion: [EJvidence of actual confusion is reflected in Jim Chung’s connection list which shows actual AvePoint" }, { "docid": "3046159", "title": "", "text": "trademark, while a weak trademark is one that is often used by other parties.” Id. (internal quotation marks and citation omitted). To assess the relative strength of a mark, one must consider the two aspects of strength: (1) “Conceptual Strength: the placement of the mark on the [distinctiveness or fanciful-suggestive-descriptive] spectrum;” and (2) “Commercial Strength: the marketplace recognition value of the mark.” McCarthy, supra, § 11:83. Under the conceptual strength prong, the categories, in descending order of strength, are: fanciful; arbitrary; suggestive; descriptive; and generic. See id. § 11:1; see also Heartsprings, 143 F.3d at 555. “ ‘Fanciful’ marks consist of ‘coined’ words that have been invented or selected for the sole purpose of functioning as a trademark.” McCarthy, supra, § 11:5. “Arbitrary marks comprise those words, symbols, pictures, etc., that are in common linguistic use but which, when used with the goods or services in issue, neither suggest nor describe any ingredient, quality or characteristic of those goods or services.” Id. § 11:11. Suggestive marks are those that suggest some quality or ingredient of the goods. See id. § 11.62. Often the line between arbitrary and suggestive is difficult to distinguish, see id. § 11:12, but for our purposes, no reason exists to make the distinction. Viewed in the light most favorable to plaintiff, its stylized mark is at least suggestive on the conceptual strength spectrum. Moreover, again drawing all inferences in favor of plaintiff, we assume that the mark has great commercial strength in the hunting apparel market. Therefore, plaintiffs mark is quite strong. The strength of plaintiffs mark cannot outweigh the other factors, however. Given the great dissimilarity between its mark as a whole and the ways in which defendants have used the phrase, “king of the mountain,” as well as our above analysis of the other factors, we find that no reasonable juror could find likelihood of confusion between plaintiffs and defendants’ marks. Accordingly, we hold that there exists no genuine issue of material fact as to the likelihood of confusion. III. Conclusion In sum, after reviewing the evidence in the light most favorable to plaintiff," }, { "docid": "1935396", "title": "", "text": "services; and (5) that the [opposing party] used the mark in a manner likely to confuse consumers.” Lamparello v. Falwell, 420 F.3d 309, 313 (4th Cir.2005). Because Yates Select Auto Sales does not contest that (1) Select Auto Imports possesses the SELECT AUTO IMPORTS mark, (2) Yates Select Auto Sales used its YATES SELECT AUTO SALES mark, (3) Yates Select Auto Sales’s use of its mark occurred “in commerce,” or that (4) Yates Select Auto Sales used the mark “in connection with the sale, offering for sale, distribution, or advertising” of goods or services, Select Auto Imports need only establish that Yates Select Auto Sales used its mark in a manner likely to confuse consumers (Doc. 88). As noted, in the Fourth Circuit, there are nine factors in a likelihood of confusion analysis: “(1) the strength or distinctiveness of the plaintiffs mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; (7) actual confusion;. (8) the quality of the defendant’s product; and (9) the sophistication of the consuming public.” George & Co. LLC, 575. F.3d at 393. No single factor is dispositive, and “there is no need for each factor to support [the plaintiffs] position.” Synergistic Int’l, LLC v. Korman, 470 F.3d 162, 171 (4th Cir.2006); see also Bd. of Supervisors for La. State Univ. Agric. & Meek Coll. v. Smack Apparel Co., 550 F.3d 465, 478 (5th Cir.2008) (“[A] finding of a likelihood of confusion need not be supported by a majority of the factors.”). 1. The Strength of the SELECT AUTO IMPORTS Mark In the Fourth Circuit, courts often consider both the conceptual strength and commercial strength of a mark. George & Co. LLC, 575 F.3d at 393-96. Conceptual strength is typically divided into five categories, which are given varying levels of protection based on the mark’s distinctiveness: (1) fanciful; (2) arbitrary; (3) suggestive; (4) descriptive; and" }, { "docid": "1935397", "title": "", "text": "used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; (7) actual confusion;. (8) the quality of the defendant’s product; and (9) the sophistication of the consuming public.” George & Co. LLC, 575. F.3d at 393. No single factor is dispositive, and “there is no need for each factor to support [the plaintiffs] position.” Synergistic Int’l, LLC v. Korman, 470 F.3d 162, 171 (4th Cir.2006); see also Bd. of Supervisors for La. State Univ. Agric. & Meek Coll. v. Smack Apparel Co., 550 F.3d 465, 478 (5th Cir.2008) (“[A] finding of a likelihood of confusion need not be supported by a majority of the factors.”). 1. The Strength of the SELECT AUTO IMPORTS Mark In the Fourth Circuit, courts often consider both the conceptual strength and commercial strength of a mark. George & Co. LLC, 575 F.3d at 393-96. Conceptual strength is typically divided into five categories, which are given varying levels of protection based on the mark’s distinctiveness: (1) fanciful; (2) arbitrary; (3) suggestive; (4) descriptive; and (5) generic. See id. Commercial strength, on the other hand, considers the mark’s strength in the marketplace and essentially mimics the inquiry into whether a descriptive mark has acquired secondary meaning, ie., that “in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself.” See Sara Lee, 81 F.3d at 464. Here, the USPTO’s registration of the SELECT AUTO IMPORTS mark without requiring proof of secondary-meaning reflects a determination that the mark is inherently distinctive (ie., at least suggestive) and is therefore “powerful evidence that the registered mark is suggestive and not merely descriptive.” U.S. Search, LLC v. U.S. Search.com Inc., 300 F.3d 517, 524 (4th Cir.2002); see also Teaching Co. Ltd. P’ship v. Unapix Entm’t, Inc., 87 F.Supp.2d 567, 578 (ED. Va.2000). Because the USPTO requested that Select Auto Imports disclaim the phrase “Auto Imports” and not “Select,” the portion of the mark that the USPTO concluded is suggestive and not merely descriptive must be “Select.” See" }, { "docid": "20136132", "title": "", "text": "how the two parties actually use their marks in the marketplace to determine whether the defendant’s use is likely to cause confusion.” Id. Our likelihood of confusion case law instructs us to examine nine factors: (1) the strength or distinctiveness of the plaintiffs mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; (7) actual confusion; (8) the quality of the defendant’s product; and (9) the sophistication of the consuming public. See Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984) (setting forth factors one through seven); see also Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463-64 (4th Cir.1996) (identifying factors eight and nine). Not all of these factors are of equal importance, “nor are they always relevant in any given case.” Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 320 (4th Cir.1992); see also id. (noting that the Pizzeria Uno factors are not meant to be a rigid formula for infringement; they are “only a guide — catalog of various considerations that may be relevant in determining the ultimate statutory question of likelihood of confusion”). However, evidence of actual confusion is “often paramount” in the likelihood of confusion analysis. Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir.2001); see also Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 937 (4th Cir.1995) (noting that the actual confusion factor is “entitled to substantial weight as it provides the most compelling evidence of likelihood of confusion”). The first likelihood of confusion factor focuses on the strength of the mark. Generally, the stronger the mark, the greater the likelihood that consumers will be confused by competing uses of the mark. Strength consists of both conceptual strength and commercial strength. CareFirst, 434 F.3d at 269. A mark’s conceptual strength is determined in part by its placement" }, { "docid": "4166182", "title": "", "text": "“the strength or distinctiveness of the plaintiff’s mark as actually used in the marketplace.” George, 575 F.3d at 393 (emphasis added). Importantly, however, the analysis in a reverse confusion case focuses on the defendant’s mark. Where the plaintiff has claimed reverse confusion, “there is no reason to apply the standard requirement that the senior user-have a strong enough mark that confusion will result,” because the junior user in a reverse confusion case “is not trying to take a free ride on the recognition value of a strong, senior -mark[.]” .4- McCarthy on Trademarks § 23:10. Thus, in a reverse confusion case, “it makes more sense to evaluate whether persons familiar with the junior user’s stronger mark, and who encounter the senior user’s weaker and less well-known mark, associate it with the junior user’s mark.” Id. Generally, “the stronger the mark, the greater the likelihood that consumers will be confused by competing uses of the mark.” Id. There are two aspects to a. mark’s strength: (1) conceptual strength, i.e., the placement of the mark along a spectrum focusing on, the. inherent potential distinctiveness of the term; and (2) commercial strength, i.e., the marketplace’s recognition as of the time the mark is asserted in litigation. See George, 575 F.3d at 393. Commercial strength is the more important aspect, .because “a conceptually strong mark that is relatively unknown in the marketplace will not be likely to cause any confusion among consumers of other products.” Renaissance, 405 F.Supp.2d at 690. Neither aspect weighs in plaintiffs favor with regard to a likelihood of confusion. To begin with, the parties’ “VIVE” marks are conceptually weak. A mark’s conceptual strength falls into one of four classifications along a spectrum of increasing distinctiveness: (1) generic; (2)' descriptive; (3) suggestive; and (4) arbitrary or fanciful. See George, 575 F.3d at 394. Normally, the PTO’s registering of a trademark is prima fade evidence of that mark’s conceptual strength because the PTO registers only fanciful, arbitrary or suggestive marks, or descriptive marks shown to have acquired secondary meaning. Id. at 395. Yet, the conceptual strength of a commonly-used mark decreases as" }, { "docid": "20041161", "title": "", "text": "the factual circumstances presented here. 1. Strength of the Mark “The stronger a mark — meaning the more likely it is to be remembered and associated in the public mind with the mark’s owner — the greater the protection it is accorded by the trademark laws.” Brookfield, 174 F.3d at 1058. Two relevant measurements are conceptual strength and commercial strength. Conceptual strength involves classification of a mark “along a spectrum of generally increasing inherent distinctiveness as generic, descriptive, suggestive, arbitrary, or fanciful.” Id. “A mark’s conceptual strength depends largely on the obviousness of its connection to the good or service to which it refers.” Fortune Dynamic, 618 F.3d at 1032-33. Federal trademark “[registration alone may be sufficient in an appropriate case to satisfy a determination of distinctiveness.” Lahoti v. VeriCheck, Inc., 586 F.3d 1190, 1199 (9th Cir.2009). However, “while the registration adds something on the scales, we must come to grips with an assessment of the mark itself.” Zobmondo Entertainment, LLC v. Falls Media, LLC, 602 F.3d 1108, 1115 (9th Cir.2010). Commercial strength is based on “actual marketplace recognition,” and thus “advertising expenditures can transform a suggestive mark into a strong mark.” Brookfield, 174 F.3d at 1058. This factor is probative of confusion here because a consumer searching for a generic term is more likely to be searching for a product category. See id. at 1058 n. 19 (“Generic terms are those used by the public to refer generally to the product rather than a particular brand of the product.”). That consumer is more likely to expect to encounter links and advertisements from a variety of sources. By contrast, a user searching for a distinctive term is more likely to be looking for a particular product, and therefore could be more susceptible to confusion when sponsored links appear that advertise a similar product from a different source. See 1-800 Contacts, Inc. v. Lens.com, Inc., 755 F.Supp.2d 1151, 2010 WL 5150800 at *17 (D.Utah 2010) (determining that “1800 Contacts” was a weak mark in a keyword advertising case because the “nature of how third parties use generic and descriptive words on" }, { "docid": "4166180", "title": "", "text": "here, a forward confusion theory would mean that consumers mistakenly believe that the HTC Vive-headset is associated with plaintiff. By contrast, in a reverse confusion case, the junior user overwhelms the market such that “customers purchase the senior user’s goods under the mistaken impression that they are getting the goods of the junior user.” Id Here, reverse confu sion would occur if someone purchasing plaintiffs goods or services was under the mistaken impression that they were buying an HTC Vive headset. See id. Thus, to prove likelihood of confusion under a reverse confusion theory, plaintiff must show “that because of the similar marks, [plain-tifffs customers are likely [and mistakenly] to ... think that [HTC] is the source of, or is sponsoring or backing, [plaintifffs goods or services.” Id. Although plaintiff has not unequivocally chosen a theory, plaintiffs counsel at the summary judgment hearing relied exclusively on reverse confusion. Ultimately, this circuit recognizes nine factors that may guide the likelihood-of-confusion inquiry: (1) the strength or distinctiveness of the plaintiffs mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; (7) actual confusion; (8) the quality of the defendant’s product; and (9) the sophistication of the consuming public. George, 575 F.3d at 393. Not all nine factors are “of equal importance, nor are they always relevant in any given case.” Id. (quotation marks omitted). For the reasons that follow, the undisputed factual record discloses that no reasonable juror could find a likelihood of either forward confusion or reverse confusion. In short, the parties use their relatively weak “VIVE” marks in different ways in disparate markets to promote dissimilar products. (1) The Strength or Distinctiveness of the Marks as Used in the Marketplace. Under either a forward confusion or reverse confusion theory of trademark infringement, this first factor does not favor plaintiff. Typically, in a forward confusion case, this first factor evaluates" }, { "docid": "4166181", "title": "", "text": "(2) the similarity of the two marks to consumers; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; (7) actual confusion; (8) the quality of the defendant’s product; and (9) the sophistication of the consuming public. George, 575 F.3d at 393. Not all nine factors are “of equal importance, nor are they always relevant in any given case.” Id. (quotation marks omitted). For the reasons that follow, the undisputed factual record discloses that no reasonable juror could find a likelihood of either forward confusion or reverse confusion. In short, the parties use their relatively weak “VIVE” marks in different ways in disparate markets to promote dissimilar products. (1) The Strength or Distinctiveness of the Marks as Used in the Marketplace. Under either a forward confusion or reverse confusion theory of trademark infringement, this first factor does not favor plaintiff. Typically, in a forward confusion case, this first factor evaluates “the strength or distinctiveness of the plaintiff’s mark as actually used in the marketplace.” George, 575 F.3d at 393 (emphasis added). Importantly, however, the analysis in a reverse confusion case focuses on the defendant’s mark. Where the plaintiff has claimed reverse confusion, “there is no reason to apply the standard requirement that the senior user-have a strong enough mark that confusion will result,” because the junior user in a reverse confusion case “is not trying to take a free ride on the recognition value of a strong, senior -mark[.]” .4- McCarthy on Trademarks § 23:10. Thus, in a reverse confusion case, “it makes more sense to evaluate whether persons familiar with the junior user’s stronger mark, and who encounter the senior user’s weaker and less well-known mark, associate it with the junior user’s mark.” Id. Generally, “the stronger the mark, the greater the likelihood that consumers will be confused by competing uses of the mark.” Id. There are two aspects to a. mark’s strength: (1) conceptual strength, i.e., the placement of the mark along a" } ]

[ { "docid": "764050", "title": "", "text": "relevant that the boy’s information was later corroborated by the Sears employees, the circumstance obviously has a bearing on the possibility of miscarriage of justice and can be taken into account in the exercise of our discretion whether to invoke the plain error rule to the extent of ordering a remand. We do not intimate a view as to whether these circumstances provide sufficient warrant for a conclusion that probable cause actually existed. That matter could be completely explored only by a remand of this ease to the District Court for further inquiry as to the details the boys supplied in their prearrest conversation with Officer Kotlarsic. Need for this is not in the least suggested by the record, and we think that with so small a probability that probable cause was lacking in this case, our discretion to consider plain error would not be wisely exercised by entertaining that unraised issue. Affirmed. . One employee saw both boys. The other saw only one. Neither employee identified either boy. . While one employee went to make a telephone call, the other endeavored to detain the man in conversation. There was no effort toward physical detention. . Officer Kotlarsic testified that appellant’s father “invited us in.” The father’s narrative of this episode did not focus on the question of invitation and he said merely that “they came in.” . D.C.Code § 22-1801 (1967 ed.). . Thus the jury rejected appellant’s testimony, corroborated by his father, that he was in the apartment at the time the store was entered. . Appellant also claims that he was not effectively assisted by his trial attorney (not his counsel on appeal) because no objection was made to introduction of the identification testimony. We do not reassess defense counsel’s trial tactics or decisions in retrospect, Bruce v. United States, 126 U.S.App.D.C. 336, 340 n. 5, 379 F.2d 113, 117 n. 5 (1967) and eases cited, and on consideration of all of the circumstances, hereinafter discussed in the text, we find no basis for holding that appellant did not receive effective representation by trial counsel. Compare Bruce" } ]

[ { "docid": "22900732", "title": "", "text": "Co. v. Hubbard, 869 F.2d 565, 570 (10th Cir.1989). Exceptions to this rule are rare and generally limited to cases where the jurisdiction of a court to hear a case is questioned, sovereign immunity is raised, or when the appellate court feels it must resolve a question of law to prevent a miscarriage of justice. Hubbard, 869 F.2d at 570; Stahmann Farms, Inc. v. United States, 624 F.2d 958, 961 (10th Cir.1980). The failure to raise the issue with the trial court precludes review except for the most manifest error. Gundy v. United States, 728 F.2d 484, 488 (10th Cir.1984). Hicks offers no reason why we should grant an exception to the general rule here, and, after reviewing the record, we believe no basis for an exception is present. The matter of what questions may be addressed for the first time on appeal is within our discretion and decided on a case by case basis. Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Cavic v. Pioneer Astro Indus., 825 F.2d 1421, 1425 (10th Cir.1987). In determining whether an exception is warranted, we are mindful of the policies behind the general rule. The facilitation accorded appellate review by having the district court first consider an issue is important. City of Waco, Texas v. Bridges, 710 F.2d 220, 228 (5th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1414, 79 L.Ed.2d 741 (1984). In addition, our respect for the district court means “the policy of declining to consider an argument not raised below is strongest where the district judge was not aware of the argument.” Richerson v. Jones, 572 F.2d 89, 97 (3d Cir.1978). It is also unfair to the opponent if one party is allowed to argue an issue not raised in the trial forum. We think such a practice leads to unfair surprise in the appellate court and would, if allowed, require us to frequently remand for additional evidence gathering and findings. The need for finality in litigation and conservation of judicial resources counsels against exceptions. Rubin v. Manufacturers Hanover Trust Co., 661" }, { "docid": "23683402", "title": "", "text": "constitute plain error. Cf. United States v. Gerald, 624 F.2d 1291, 1299-300 (5th Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). ALLEGED ERROR IN THE COURT HAVING CONFERENCE WITH COUNSEL IN THE ABSENCE OF DEFENDANT At the conclusion of the government’s case, the trial court excused the jury and permitted appellant to leave, in order to accommodate his recent medical problems, after informing him that he would defer hearing any defense motions until Graves could be present but wanted to speak to defense counsel. During the colloquy that followed among the trial judge, Graves’s counsel, and the attorney for the govern ment, the trial court informally notified defense counsel that he thought the government had established a prima facie case. The court then invited counsels’ views regarding possible jury instructions. In response to the court’s inquiry whether the defense had decided if Graves would testify, Graves’s counsel informed the court that Graves would probably testify the following day against the advice of his counsel. Graves now argues that the occurrence of this discussion and his counsel’s disclosure in his absence constituted plain error in violation of his constitutional and statutory right to be present at every stage of his trial. We disagree. Graves relies upon McKissick v. United States, 379 F.2d 754 (5th Cir. 1967) as support for his argument that he had a right to be present at the colloquy between the trial court and the parties. McKissick was, as the court itself noted, an “unusual ease.” Id. at 760. McKissick took the stand on the first day of trial. At the conclusion of his testimony, the trial court dismissed the jury and engaged in a lengthy cross-examination of McKissick. After completing its questioning, the trial court stated that “[tjhere is the worst case of perjury in this case I have ever seen since I have been on the Bench,” and that either McKissick or a government witness had lied while on the stand. During an overnight recess, McKis-sick confessed to his counsel that he had perjured himself on the stand, and his" }, { "docid": "10736751", "title": "", "text": "offense — failed to supply probable cause to support the search. This motion was overruled on the basis that the search was not incident to Hall’s arrest for traffic offenses but rather was incident to the arrest of Hall’s passenger as a suspected bank robber. No issue was ever joined in the trial court as to the existence of probable cause to arrest Linsieombe as a bank robbery suspect, and the record before us now is devoid of any facts related to this issue. For the first time on this appeal, Hall raises the question that the police lacked probable cause to arrest Linsicombe in connection with the bank robbery — hence, there was no probable cause to search and find the objectionable monies — hence, the admission of evidence directly dependent upon this search fruit should have been suppressed. This case falls squarely within the rule which forbids appellate courts to try issues originated here. We refuse to fault the trial court’s ruling on a basis never raised, and which that court had no reason to require be developed under the issues presented to it for decision by the defendant. Davis v. United States, 424 F.2d 1061 (5th Cir. 1970). No such exceptional circumstances exist in the case at bar as would warrant our considering the trial court’s action plain error such as might require a remand for further hearing to avoid a miscarriage of justice. See Washington v. United States, 134 U.S.App.D.C. 223, 414 F.2d 1119 (1969); cf. McKissick v. United States, 379 F.2d 754 (5th Cir. 1967) Affirmed. . 18 U.S.O.A. §§ 2213(a) and 2213(d). . It is appropriate to note that resourceful appellate counsel did not represent the defendant in the trial court." }, { "docid": "23455318", "title": "", "text": "and admitted the statements in redacted form so as to avoid prejudice to the other defendants. Defendant Speiss does not challenge this ruling on appeal. At the suppression hearing, Speiss’ counsel mentioned that the admission of the November confession might present Sixth Amendment problems. To this objection, the judge responded that he would not rule on the Sixth Amendment challenge because, although Speiss’ contention might form the basis of an additional motion to suppress, the motion before him failed to include any Sixth Amendment arguments. Speiss never amended his first motion or submitted a second motion dealing with his Sixth Amendment contention. In fact, aside from his counsel’s passing reference at the hearing, defendant Speiss never raised this argument during the proceedings below and, instead, raises it for the first time on appeal. On numerous occasions, this court has held that a defendant waives a particular argument for reversal if he failed to raise that contention at trial. See United States v. Nero, 733 F.2d 1197, 1207 (7th Cir.1984); United States v. Welsh, 721 F.2d 1142, 1145 (7th Cir.1983). See also United States v. Rollins, 522 F.2d 160, 165 (2nd Cir.1975) (defendants must disclose prior to trial particular ground upon which he bases his motion to suppress evidence), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976). Unless the district court’s decision to admit the November confession constituted plain error, see Fed. R.Crim.P. 52(b), this court must uphold the district court’s ruling. According to the decisions of this court, plain error is an error that resulted in “an actual miscarriage of justice, which implies the conviction of one who but for the error would have been acquitted.” United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir. 1984), cert. denied, — U.S.-, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985). In addition, to enable a court to review for plain error, defendant’s argument for reversal must be based on “newly-raised questions of law, untainted by factual ambiguity.” United States v. McCabe, 720 F.2d 951, 955 (7th Cir.1983). In this case, defendant Speiss argues that his November confession violated" }, { "docid": "1377053", "title": "", "text": "as to appellant Palm Beach Gardens Medical Center, we VACATE the judgment and REMAND to the trial court with instructions to dismiss Palm Beach Gardens Medical Center from this action. As to all other appellants, we VACATE the injunction and REMAND for further proceedings. . On December 28, 1988, P.D.Q. Nurse, Inc. filed a separate action alleging similar violations of state and federal antitrust laws by the same defendants. On February 21, 1989, the district court entered an order consolidating the P.D.Q. case with the action brought by appellees. . The trial court determined that because appel-lees had failed to show the effect of the appellants’ actions on interstate commerce, as required to invoke the jurisdiction of the Sherman Act, the court was unable to find that appellees had demonstrated a likelihood of success on the merits. The court went on to determine that plaintiffs had made claims under the Florida antitrust act, and such claims were properly before the court. . Appellees do not dispute Palm Beach Gardens’ contentions, but instead argue that Palm Beach Gardens should have raised this issue with the court below by way of a motion to dismiss or a summary judgment motion. Generally, an appellate court will not consider matters which were not raised or considered in the court below. Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941); McKissick v. United States, 379 F.2d 754, 759 (5th Cir.1967). \"There is, however, no rigid and undeviating judicially declared practice under which courts of review invariably and under all circumstances decline to consider all questions which have not previously been specifically urged_ Exceptional cases or particular circumstances may prompt a reviewing court, or where public policy requires, to consider questions neither pressed nor passed upon below. The power to raise and decide questions sua sponte is, however, to be exercised sparingly and with full realization of the restrictions and limitations inherent in its employment.\" McKissick, quoting Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir.1961). The total failure of the appellees to offer any evidence to support their allegations" }, { "docid": "23465259", "title": "", "text": "a postponement,” such as the fact that trial counsel was also appellate counsel or that it reasonably appeared at the time of direct appeal that the development of facts not in the record was necessary to support the claim. Guinan v. United States, 6 F.3d 468 (7th Cir.1993); cf. Beaulieu v. United States, 930 F.2d 805, 807 (10th Cir.1991) (failure to bring ineffective assistance claim on direct appeal may bar claim in collateral proceedings in \"narrow subcategory” of cases in which defendant is no longer represented by trial counsel and resolution of the claim would not be substantially aided by further development of the record); United States v. Casiano, 929 F.2d 1046, 1051 (5th Cir.1991) (allowing ineffective assistance claim on § 2255 motion because defendant did not deliberately bypass claim on direct appeal). For the reasons explained in Judge Easterbrook’s concurring opinion in Guinan, we ■ decline to follow this rule. We believe that it would lead to unnecessary confusion and a proliferation of litigation regarding alleged procedural defaults. . In the 15 years since Twigg was decided, our court has not found any other case warranting dismissal of criminal charges on a similar ground. See United States v. Martino, 825 F.2d 754, 763 (3d Cir.1987) (noting this court’s “extreme caution in finding due process violations in undercover settings” and citing collected cases). . Rather than a true Twigg claim, DeRewal’s argument seems in large part to be an attempt to relitigate the trial judge’s refusal to suppress the fruits of the Costa Rican wiretap and his decision to permit Peggy Turner Dunn to testify. These questions, however, were raised and rejected on direct appeal. Many cases have held that Section 2255 generally \"may not be employed to relitigate questions which were raised and considered on direct appeal.” Barton v. United States, 791 F.2d 265, 267 (2d Cir.1986) (collecting cases). We refuse to permit such relitigation here. Similarly, to the extent that DeRewal attempted to use his Section 2255 motion as a vehicle for contesting portions of the district court's decision on this Rule 33 motion — for example, the" }, { "docid": "6237719", "title": "", "text": "Balkcom, 333 F.2d 496 ([C.A.] 5th Cir. 1964), we think that the deliberate bypassing by counsel of the contemporaneous-objection rule as a part of trial strategy would have that effect in this case.” 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408. The Supreme Court of Appeals of Virginia, citing the above language in Henry, has ruled that a trial attorney’s failure to make timely objection to a verdict’s variance from an indictment is binding upon the defendant and precludes consideration of the issue on appeal. Henson v. Commonwealth, 208 Va. 120, 127, 155 S.E.2d 346, 349 (1967); see also Williamson v. Commonwealth, 211 Va. 57, 175 S.E.2d 285 (1970) for the timely objection rule applied to evidence. We see no reason to distinguish application of the contemporaneous-objection rule in the instant case. Thus, even were the issue properly before us, which it is not, Terry would be bound by his trial counsel’s decision not to object to Talley’s testimony regarding his out-of-court identification. Finally, even assuming that a constitutional infirmity attended Terry’s out-of-court identification, admission of testimony regarding it would not necessarily constitute error entitling him to relief. See United States v. Cunningham, 423 F.2d 1269, 1275 (4th Cir. 1970). Counsel amicus curiae urges that the testimony “was apparently accorded weight” by the trial judge. Assuming such, we are confident that the trial judge, sitting without a jury, received the testimony with appropriate scrutiny. His rather searching inquiry, as noted, showed a judicious caution toward accepting Talley’s in-court identification as a basis for conviction. That caution was evident throughout the trial which, as conceded by aforementioned counsel in oral argument here, “was conducted in a terribly admirable way by the judge — terribly fair.” We are of opinion that any supposed error in the admission of such testimony would be harmless under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Having carefully considered the points raised by appellant, we perceive no denial of his constitutional rights. The denial of his petition is therefore Affirmed. . See, e. g., Sunal v. Large," }, { "docid": "6575273", "title": "", "text": "at the start of trial, that any statements taken at the jail (several days after the statements were made at the port of entry) would not be introduced. Knezek’s counsel then requested a suppres sion hearing concerning possible coercion and duress as to the statements made at the port of entry. (As noted, no motion was ever filed.) The district judge refused to grant a hearing, noting the delay, the prior proceedings, and that no motion had been filed, and ruling that the matter had been waived; but, he ruled that if Knezek’s counsel wanted to develop those issues at trial, he would possibly grant-a mistrial if coercion was proven. Nevertheless, Knezek’s counsel did not do so. And, when the statements were admitted at trial, he did not object to their admission. Moreover, Knezek’s defense at trial was not that he made the statements under duress or while unaware of his rights, but that he had simply not made them. As noted, Knezek relied also on Huff’s testimony that Huff had borrowed the weapons and Knezek was not aware of them. Furthermore, Knezek never raised in district court the point he primarily relies upon here—that he had not been advised of his. Miranda rights.. The district judge did not abuse his discretion in ruling that a waiver occurred; accordingly, we do not reach the application of Miranda or the other bases raised here for suppressing the statements. B. Knezek maintains that, under Rule 404(b), the district court erred in admitting evidence that Knezek and Huff had purchased the guns in exchange for marijuana, and that syringes, ammunition, and marijuana residue were found in the search of the car. However, Knezek did not object at trial to the admission of this evidence. Therefore, we review only for plain error. See Fed.R.Evid. 103. “[P]lain error is an error ‘so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings and result in a miscarriage of justice.’ ” United States v. Fortenberry, 914 F.2d 671, 673 (5th Cir.1990) (quoting United States v. Graves," }, { "docid": "21898818", "title": "", "text": "guilty was entered, and the case was set for trial on March 14. On March 14 Mr. Kaufman appeared, stating that he had the day before received a letter from the appellant asking that he (Kaufman) represent him, and upon their joint request appointed counsel were relieved and Kaufman substituted as defense counsel. Mr. Kaufman then requested a continuance, stating that time was needed for trial preparation, and suggested that if necessary the case go over until the fall term of court; it is noted that appellant was incarcerated, not out on bond. The request was denied, and the trial commenced forthwith. The next day the jury returned a verdict of guilty and on that day a twenty year committed sentence was imposed. We recognize at the outset that as argued by the appellee, the ruling on a motion for continuance is within the sound discretion of the trial judge and his action thereon will be set aside only when there is clear abuse. McKissick v. United States, 379 F.2d 754 (5th Cir. 1967); Joseph v. United States, 343 F.2d 755 (5th Cir. 1965). The question thus becomes, was there a clear abuse of discretion in the present case? In support of his request for a continuance, Mr. Kaufman stated to the District Court, “I have never seen the indictment, I have not done what I feel is necessary relative to the investigation on the part of my client. I feel that he is not one who should be permitted to use and would use the [Criminal Justice] Act; he is a man who has funds * * *. I feel myself in a difficult position, because I feel — I know that the Court is prepared to go to trial and I know that the Court’s time is of great value, but I do feel personally that if this ease should go to trial today, * * * i would not be in a position to do the job that is desired of me and required of me under the law inasmuch as I am not fully prepared to" }, { "docid": "1332249", "title": "", "text": "United States v. White, 718 F.2d 260, 262 (8th Cir.1983). Because the ground for suppression urged on appeal was neither presented to nor ruled upon by the trial court, we decline to review Neumann’s challenge to the warrant. See United States v. Hugh Chalmers Chevrolet-Toyota, Inc., supra. We find that Neumann’s pretrial suppression motion did not encompass the ground for suppression now argued on appeal. As noted above, in denying Neumann’s motion to suppress, the magistrate concluded that probable cause existed to believe that Neu-mann’s pickup contained evidence related to the robbery. Thus, the magistrate squarely addressed and rejected the grounds for suppression asserted in Neu-mann’s pretrial motion. Neumann’s appeal does not challenge the existence of probable cause to search the pickup, nor does he directly challenge the admissibility of the items specifically enumerated in the warrant. Neumann now challenges the execution of the warrant, asserting that the seizure of property unenumerated in the warrant under the general heading of “other fruits, instrumentalities, and evidence” of the robbery resulted in the admission of evidence outside the specificity requirement of the fourth amendment. If Neumann had raised this ground by way of pretrial motion, the district court could have determined the reasonableness of the search and seizure. If Neumann had raised his overbreadth challenge in a timely fashion, the government could have (and, it claims, would have) attempted to justify the seizure under the plain view doctrine, or as an inventory search, or under a good faith exception to the warrant requirement. We see no need to speculate, however, about how the district court might have dealt with the merits of a motion to suppress grounded on a claim of overbreadth. Where, as here, a defendant challenges a search warrant as facially insufficient in failing to establish probable cause, a later assertion that the evidence should be suppressed because the scope of the search warrant was too broad states a new and independent ground for suppression. Cf. United States v. Worthington, 698 F.2d 820, 822-24 (6th Cir.1983) (overbreadth challenge did not renew initial motion on facially deficient probable cause). C. The" }, { "docid": "16183697", "title": "", "text": "S.Ct. 2213, 60 L.Ed.2d 777 (1979). If these three prerequisites are met, a federal court must determine whether the petitioner is able to meet the cause and prejudice test to excuse the state procedural default. The cause and prejudice standard is a two-part test in which the petitioner must: (1) present a substantial reason to excuse the default, Coleman, 501 U.S. at 754, 111 S.Ct. 2546; and (2) show that he was actually prejudiced as a result of the claimed constitutional error, United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). If the claims presented in the federal court were never actually presented in the state courts, but a state procedural rule now prohibits the state court from considering them, the claims are considered exhausted, but are procedurally barred. Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546. Id. In Coleman v. Mitchell, 244 F.3d 533 (6th Cir.2001), we explained the last resort for habeas petitioners who fail to show cause and prejudice for procedural default: When a habeas petitioner has failed to show cause for not asserting his ineffective assistance of appellate counsel claim properly in the Ohio courts, a federal court may not reach the merits of the habeas claim unless the petitioner can show that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that “in light of the new evi dence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Id. at 540. As relevant here, we have recognized that Ohio applies res judicata to bar the consideration of constitutional issues that were not, but could have been, raised on direct appeal. In 1967, the Ohio Supreme Court held that “[ejonstitutional issues cannot be considered in post-conviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of" }, { "docid": "1377054", "title": "", "text": "Beach Gardens should have raised this issue with the court below by way of a motion to dismiss or a summary judgment motion. Generally, an appellate court will not consider matters which were not raised or considered in the court below. Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941); McKissick v. United States, 379 F.2d 754, 759 (5th Cir.1967). \"There is, however, no rigid and undeviating judicially declared practice under which courts of review invariably and under all circumstances decline to consider all questions which have not previously been specifically urged_ Exceptional cases or particular circumstances may prompt a reviewing court, or where public policy requires, to consider questions neither pressed nor passed upon below. The power to raise and decide questions sua sponte is, however, to be exercised sparingly and with full realization of the restrictions and limitations inherent in its employment.\" McKissick, quoting Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir.1961). The total failure of the appellees to offer any evidence to support their allegations against this appellant does not justify the further time and expense to the appellant if it remained a party defendant. TJOFLAT, Chief Circuit Judge, concurring: I concur in the majority’s disposition of this case but write separately because I am concerned about the district court’s application of the rule of reason and the per se rule to the appellees’ boycott and price-fixing claims. The majority’s opinion creates the impression that the district court simply made procedural errors in failing to give proper notice before issuing the preliminary injunction and in failing to hold an evidentiary hearing on disputed facts. I agree with that characterization of the district court’s errors but fear that the procedural errors resulted from a misunderstanding of when a court may apply the per se rule to claims of boycott and price fixing. In issuing the preliminary injunction, the district court apparently based its prediction that the appellees ultimately would prevail on the merits on a mistaken belief that the per se rule would automatically apply to this case. That mistaken belief" }, { "docid": "23430424", "title": "", "text": "contents. Since this argument was not raised below, we will consider it only if a refusal to do so would result in a miscarriage of justice. Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir. 1976). Such is not the case here as the trial judge properly exercised his discretion in excluding the resolution as hearsay. AFFIRMED. . Appellant was sentenced to concurrent two-year prison terms on the seven mail fraud counts, a consecutive two-year term on the interstate transportation of stolen property count, and a fine of $3,000. . The “Goldberg” telephone number provided by the appellant was actually subscribed to by Chaney. Many of the companies defrauded by the appellant called this number and received false credit information favorable to Western Distributing. . During the trial, the appellant asked that it be noted for the record that he takes exception to the judge holding the waiver hearing in the presence of the jury venire. This objection was made well after the waiver hearing had been conducted and therefore was untimely. See Fed.R.Crim.P. 51; United States v. Perez, 651 F.2d 268, 271 (5th Cir. 1981). . A defendant who chooses to proceed pro se is not entitled to special treatment on appeal. If a pro se defendant fails to .properly preserve an issue for appeal, we will set aside the conviction only if the trial court committed plain error. The purpose of the plain error rule is to enforce the requirement that parties object to errors at trial in a timely manner so as to provide the trial judge an opportunity to avoid or correct any error, and thus avoid the costs of reversal. The costs of permitting a defendant to raise an objection for the first time on appeal are the same whether defendant is represented by counsel or proceeds pro se. For an excellent discussion of these costs in a slightly different context, see Wainwright v. Sykes, 433 U.S. 72, 88-91, 97 S.Ct. 2497, 2507-08, 53 L.Ed.2d 594 (1977) (holding that if a defendant fails to raise a constitutional claim at the trial level as prescribed by" }, { "docid": "10736750", "title": "", "text": "PER CURIAM: In form, Donald J. Hall appeals from his conviction after a jury trial on charges of bank robbery and assault. However, Hall concedes that the evidence adduced was sufficient to support the verdict of the jury and no contention is raised as to the rulings of the court during the formal trial. The substance of his appeal is directed solely to the admis sibility in evidence of certain identifiable money (commonly known as bait money) taken from the robbed bank. This bait money had been discovered in a concealed area of an automobile occupied by Hall and a passenger, John Linsieombe, during a warrantless search made at the time of Linsicombe’s arrest. The automobile had been stopped a short time previously by Houston, Texas police officers on the basis of alleged traffic violations committed by Hall. In his district court trial, Hall moved in limine to suppress the introduction of all evidence directly or indirectly connected with this bait money on the ground that his, Hall’s, arrest — based upon a simple traffic offense — failed to supply probable cause to support the search. This motion was overruled on the basis that the search was not incident to Hall’s arrest for traffic offenses but rather was incident to the arrest of Hall’s passenger as a suspected bank robber. No issue was ever joined in the trial court as to the existence of probable cause to arrest Linsieombe as a bank robbery suspect, and the record before us now is devoid of any facts related to this issue. For the first time on this appeal, Hall raises the question that the police lacked probable cause to arrest Linsicombe in connection with the bank robbery — hence, there was no probable cause to search and find the objectionable monies — hence, the admission of evidence directly dependent upon this search fruit should have been suppressed. This case falls squarely within the rule which forbids appellate courts to try issues originated here. We refuse to fault the trial court’s ruling on a basis never raised, and which that court had no" }, { "docid": "22862715", "title": "", "text": "an issue regarding the withholding of information by the government in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We find it unnecessary to reach this issue since we are reversing on other grounds, and we presume that the defendant was made aware of all information in the Government’s file during the first trial. Since there must be a retrial in any event, we do not believe that the Brady issue will re-occur. ON PETITION FOR REHEARING PER CURIAM: In a petition for rehearing, the Government contends that the eyewitness identification of Sutherland should be admissible — notwithstanding the impermissible suggestive picture spread — because of Section 701(a) of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 3502). The point was not raised in the court below nor has it been previously raised in this court. Having tried and appealed its case on one theory, an unsuccessful party may not then use a petition for rehearing as a device to test a new theory. Minute Maid Corp. v. United Foods, Inc., 291 F.2d 577 (5th Cir. 1961); see Liberty Mutual Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969) (on Motion for Attorneys’ Fees on Appeal). We certainly do not regard this case as presenting extraordinary circumstances which would justify our considering on petition for rehearing, issues which were not previously presented. See e. g. McKissick v. United States, 379 F.2d 754 (5th Cir. 1967). If on the retrial, the Omnibus Crime Act issue is raised, there will be adequate opportunity for the district court to determine if the act is applicable and, if so, if it is valid. The government also argues that the evidence about the jailhouse seminar which placed Sutherland and Kump together in the Phoenix jail was merely cumulative to other evidence that these persons had been together previously in jail. The government contends that such cumulative evidence should not be grounds for reversal and, under the circumstances of this case, we agree. Therefore, the third paragraph of Part III" }, { "docid": "21862581", "title": "", "text": "Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980); see also Rojas v. Richardson, 703 F.2d 186, 189 (5th Cir.) reh’g granted on other grounds, 713 F.2d 116 (1983). Ideco contends that Petty’s failure to renew his objections when the tapes were shown to the jury precludes appellate review. Ideco further urges that since Petty’s motion in limine did not raise the specific objections raised on this appeal, our review of plaintiff’s claims concerning Fed. R.Civ.P. 30 and 32 is also precluded. See Complete Auto Transit, Inc. v. Wayne Broyles Engineering Corp., 351 F.2d 478, 483 (5th Cir.1965) (since ground on which appellant attacked evidence on appeal was not specifically stated in its objection at trial, error, if any, committed by trial court in overruling such objection was waived by appellant); accord Shingleton v. Armor Velvet Corp., 621 F.2d 180, 183 (5th Cir. 1980). Notwithstanding Petty’s failure to preserve the alleged error in the admission of the tapes for appellate review, Fed.R. Evid. 103(d) provides that: “[n]othing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.” The “plain error rule” is an extraordinary remedy which is invoked only in exceptional circumstances to avoid a miscarriage of justice. Rojas v. Richardson, 703 F.2d at 190. This Court has defined plain error as error which is “obvious and substantial.” Id. (citations omitted). Ultimately, though, the determination rests on the facts of the individual case. Id. Rule 402 of the Federal Rules of Evidence provides that, with certain specific exceptions, all relevant evidence is admissible. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence.” Fed.R.Evid. 401. As noted previously, Ideco’s theory of the case was that Petty’s injuries were a result of Petty’s own negligence in misusing the servicing unit. The videotapes were not offered to reenact the accident, but were presented to show the normal operation of the unit. It cannot be said" }, { "docid": "18044343", "title": "", "text": "the government’s contention. For example, in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Court stated: “In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. * ■■ * “Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.” See Alderman v. United States, 394 U. S. 165, 171-173, 89 S.Ct. 961, 22 L.Ed. 2d 176; United States v. James, 432 F.2d 303 (5th Cir. 1970). See also Dearinger v. Rhay, 421 F.2d 1086 (9th Cir. 1970). Assuming, arguendo, that appellants possessed the requisite standing, we find no merit in their contentions concerning their non-presence at the evidentiary hearings. The Sixth Amendment and Fed.Rules Cr.Proc. 43 do guarantee a defendant the right to be present at the arraignment and “at every stage of the trial”. No appellate court has extended this right to an evidentiary hearing. Appellants place great reliance on McKissick v. United States, 379 F.2d 754 (5th Cir. 1967) and Cross v. United States, 117 U.S.App.D.C. 56, 325 F.2d 629 (1963). Both cases were concerned with actions occurring during the course of the trial. In McKissick, the trial court declared a mistrial because the defendant’s attorney told the court in chambers that defendant had admitted perjury. The case was remanded to determine whether defendant was absent during the conversation in chambers, and if so, whether there was any prejudice to his rights. See United States v. Lewis, 420 F.2d 686, 687 (5th Cir. 1970). Appellants assert, however, that the Supreme Court has expressly declined to specify the procedure to be followed in evidentiary hearings," }, { "docid": "6414649", "title": "", "text": "H. Morgan Daniel Seafoods, Inc., 433 F.2d 918 (5th Cir. 1970). One further matter requires discussion. The government attempted to introduce as an admission the “tear-off” portion of the request for reconsideration and/or waiver form that Cormier had signed and returned. Over Cormier’s objection, the magistrate admitted the document but, as noted supra, not as an admission but as “an explanation of why she did what she did.” Although during oral argument before this court Cormier’s counsel challenged the document’s introduction, objection to the evidentiary ruling was not preserved as a ground of appeal. Therefore, we may consider it sua sponte only if its introduction constituted plain error, F.R.Crim.P. 52(b), seriously affecting the fairness, integrity or public reputation of judicial proceedings. United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). See, e. g., United States v. Adams, 634 F.2d 830 (5th Cir. 1981). Moreover, plain error under Rule 52(b) means error both obvious and substantial, Sykes v. United States, 373 F.2d 607 (5th Cir. 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967), and Rule 52(b) should be invoked only where exceptional circumstances make it necessary to avoid a clear miscarriage of justice. Mims v. United States, 375 F.2d 135 (5th Cir. 1967). Applying these standards to the instant case, we find that the magistrate’s admission of the form was neither obvious nor substantial error, nor a clear miscarriage of justice. Although we strongly disapprove of the government’s tactics — leading Cormier to believe that it would reconsider its overpayment determination and, if requested, consider waiving the amount overpaid; instead denying both requests, and attempting to introduce the form as an admission— we conclude that admission of the document did not constitute plain error. This was a bench trial, and the magistrate made clear that he did not admit the document as an admission but only as evidencing Cormier’s explanation of “why she did what she did,” the same explanation that she had given in direct testimony. Since the facts shown by the document were before the court through" }, { "docid": "18044344", "title": "", "text": "possessed the requisite standing, we find no merit in their contentions concerning their non-presence at the evidentiary hearings. The Sixth Amendment and Fed.Rules Cr.Proc. 43 do guarantee a defendant the right to be present at the arraignment and “at every stage of the trial”. No appellate court has extended this right to an evidentiary hearing. Appellants place great reliance on McKissick v. United States, 379 F.2d 754 (5th Cir. 1967) and Cross v. United States, 117 U.S.App.D.C. 56, 325 F.2d 629 (1963). Both cases were concerned with actions occurring during the course of the trial. In McKissick, the trial court declared a mistrial because the defendant’s attorney told the court in chambers that defendant had admitted perjury. The case was remanded to determine whether defendant was absent during the conversation in chambers, and if so, whether there was any prejudice to his rights. See United States v. Lewis, 420 F.2d 686, 687 (5th Cir. 1970). Appellants assert, however, that the Supreme Court has expressly declined to specify the procedure to be followed in evidentiary hearings, citing Giordano v. United States, 394 U.S. 310, 314, 89 S.Ct. 1163, 1165, 22 L.Ed.2d 297 (1969) (concurring opinion). Justice Stewart, in the same paragraph, explained that “ ‘Nothing in Aldermen v. United States, Ivanovov v. United States, or Butenko v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance.’ Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1961).” Appellants also rely on the presumption against the waiver of fundamental constitutional rights, as set out in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Court, in speaking of the right to counsel, was careful to explain, however, that an intelligent waiver “must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” 304 U.S. at 464, 58 S.Ct. at 1023. We have carefully reviewed the record in the instant case, in which appellants’" }, { "docid": "975159", "title": "", "text": "need for the warrant, not the need for probable cause. Id. . The majority never makes clear how it feels the plain error rule changes the result in this case. . Judge Leventhal in his separate concurrence recognizes that the issue of the window search was brought to the attention of the trial court. He concludes, however, that the record is not sufficiently developed to permit appellate review on this issue. If this were correct, which I doubt, see note 10 infra, I see no reason for penalizing appellant by refusing review altogether. Since the legality of the window search has been properly raised, the very least required by fundamental fairness is to remand this case to the trial court to take further evidence on any inadequately developed factual issues. . This is so even though the defendants had not all joined in one motion to suppress. (M.T. Nov. 1, p. 7.) . The fact that the window search was clearly though not strenuously challenged before the trial court sets this case apart from other cases where this court has invoked the plain error rule. In United States v. White, 139 U.S.App. D.C. 32, 429 F.2d 711 (1970), the court refused to find plain error in the admissibn of evidence where the appellant neither filed a motion to suppress the evidence nor objected to its admission at trial. United States v. Smith, 160 U.S.App.D.C. 221, 490 F.2d 789 (1974), is similar. There the appellant did not object at all to the admission of certain damaging evidence until the case was on appeal. Id., at 226-227, 490 F.2d at 794-5. See also United States v. Diggs, 173 U.S.App.D.C. 95, 522 F.2d 1310 (1975), and United States v. Johnson et al., 539 F.2d 181 (1976). Finally, a recent Supreme Court case offers considerable guidance on the question of whether the window search is properly before us. In Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1973), the petitioners unsuccessfully sought to advance on appeal a ground for the objection of evidence they had not argued to the" } ]

[ { "docid": "4659730", "title": "", "text": "for declaring the act unconstitutional under any and all circumstances, as it has been given serious consideration by many eminent district judges of the Unit ed States. In re Young (D.C.) 12 F.Supp. 30; In re Sherman (D.C.) 12 F.Supp. 297; In re Lindsay (D.C.) 12 F.Supp. 625; In re Davis (D.C.E.D.N.Y.) 13 F.Supp. 221 (Byers, J.); In re Schoenleber (D.C.D. Neb.) 13 F.Supp. 375 (Hunger & Donohoe, JJ.) ; In re Diller (D.C.S.D.Cal.) 13 F.Supp. 249 (Cosgrave, J.) Several of the lower courts have, however, refused to declare the act unconstitutional upon different grounds, but in general either expressly or impliedly have stated that the decision as to the unconstitutionality of the act should be left to the appellate courts. In re Slaughter (D.C.) 12 F.Supp. 206; In re Williams (D.C.N.D.Tenn.) (Gore, J.) ; In re Reichert (D.C.W.D.Ky.) 13 F.Supp. 1 (Hamilton, J.) ; In re Bennett (D.C.W.D.Mo.) 13 F.Supp. 353 (Otis, J.); In re Cole (D.C.S.D.Ohio) 13 F.Supp. 283 (Nevin, J.). It is not every right or interest in real estate that may be administered under subsection (s) of section 75 of the act. To permit the renting of real estate and the right of possession to a debtor for a period of three years where he only has a slight right or interest in and to the property would amount to the taking of private property from one person and giving it to another, and this the Congress cannot do without making reparation to the person from whom the property is so taken. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106. The Court of Appeals of the Seventh Circuit has considered some of these rights or interests in real estate and declared them insufficient to warrant administration under subsection (s), as follows: (1) Where the right or interest in such real estate is only the right of a period of redemption. In re Lowmon (LaFayette Ins. Co. v. Lowmon) (C.C.A.) 79 F.(2d) 887. (2) Where such right or interest is by virtue of an optional contract" } ]

[ { "docid": "9973351", "title": "", "text": "for the petitioner merely to institute the proceedings with the wild hope that he will be able to have accepted, by the requisite number and amount of creditors, a plan for liquidation of his debts, but the hope must itself be founded upon reason, which means that there must be some probability of eventually liquidating his debts in conformity with the plan. In short, the act is not to be construed as affording protection to every petitioner who invokes its provisions without having substantially more to recommend him to the court for relief than his bare status as a farmer and his need of assistance. See In re Allen D. Schaeffer & George W. Schaeffer, 14 F.Supp. 807, decided by this court on April 2. 1936; also, In Re Borgelt (C.C.A.) 79 F.(2d) 929; Id. (D.C.) 10 F.Supp. 113. The proposal offered by the present petitioner, Byrd, was the folio-wing: “First: To the. Kent County Savings Bank, holder of mortgage claim amounting to $12,305.91. The same amount to be repaid by a mortgage of $10,000.00 which is now in effect between the parties, the balance of $2,305.91 plus the claim of $1,-096.98, to be repaid in the following manner : “$100.00 every three months, the interest on the mortgage of $10,000.00 to be paid at the rate of 6% semi-annual. “Second: To Massey and Wilmer, and C. C. Ivens, their claims to be repaid 10% the first year and 10% at the end of the second year.” Only the creditors named in the second paragraph of this proposal accepted it, representing only about 11 per cent, of the total amount of the claims. If it could ever have reasonably been assumed that Byrd would have been able to meet the terms of the first paragraph of his proposal which related to the ostensible taking care of the mortgagee, what has since transpired in these proceedings conclusively takes away the right to persist in any such assumption. By the plan, offered six months ago, Byrd proposed, in consideration of the extraordinary rights provided by subsection (s) of section 75, to pay" }, { "docid": "15105450", "title": "", "text": "their consent, the appraised value of his property. If the granting of a three-year stay cannot be reasonably expected to result in saving or preserving his equities in his real or personal property, then he cannot be considered as one who is able to rehabilitate himself. A fortiori,.if he has no equities to preserve, and if it is extremely improbable that any equities will materialize during the three-year period, then there is nothing for the act to administer.” Other cases which appear to sup'port the view that a farmer debtor who has no present or potential equity in his property and no ' reasonable chance of paying or refunding in full the mortgages upon it, may not take advantage of Sec. 75(s), are: Massey v. Farmers & Merchants Nat. Bank & Trust Co., 4 Cir., 94 F.2d 526; Pearce v. Coller, 3 Cir., 92 F.2d 237; Dallas Joint Stock Land Bank v. Davis, 5 Cir., 83 F.2d 322; In re Cox, D.C., 22 F. Supp. 925; In re Palmer, D.C., 21 F.Supp. 628; In re Erickson, D.C., 18 F.Supp. 439; In re Davis, D.C., 16 F.Supp. 960; In re Wylie, D.C., 16 F.Supp. 193. We think that the orders appealed from should he affirmed." }, { "docid": "8377783", "title": "", "text": "* is unable to refinance himself within three years,’ the court may close the proceedings by selling the property. This clause must be interpreted as meaning that the court may terminate the stay if after a reasonable time it becomes ’evident that there is no reasonable hope that the debtor can rehabilitate himself within the three-year period.6 ” Then follows this footnote (pages 462, 463 of 300 U.S., 57 S.Ct.. page 562): “6 This construction is in harmony with the requirement of good faith in.the initiation of proceedings under section 75. Rer lief under section 75 (s) may be obtained only by one who has made a bona fide attempt, and has failed, to effect a composition under section 75, (a) to (r), 11 U, S.C.A. § 203(a-r). The offer of composition must be in' good faith [section 75,' (c), (i), 47 Stat. 1471, 1472], and i-f the debtor is beyond all reasonable hope of financial rehabilitation, and the proceedings under section 75 cannot be expected to have any effect beyond postponing inevitable liquidation, the proceedings will be halted.at the outset. The practical administration of section 75 in the lower courts already affords ample evidence of the substantial protection afforded the creditor by this requirement of good faith in the initiation of proceedings under subsections (a)-(r). See In re Borgelt [7 Cir.], 79 F.2d 929; Dallas Joint Stock Land Bank v. Davis [5 Cir.], 83 F.2d 322, 323; Steverson v. Clark [4 Cir.], 86 F.2d 330; Knotts v. First Carolinas Joint Stock Land Bank [4 Cir.], 86 F.2d 551; In re Reichert (D.C.) 13 F.Supp. 1, 4, 5; In re Paul (D.C.) 13 F.Supp. 645, 647; In re Buxton’s Estate (D.C.) 14 F.Supp. 616; In re Vater (D.C.) 14 F.Supp. 631; In re Schaeffer (D.C.) 14 F.Supp. 807; In re Duvall (D.C.) 14 F.Supp. 799; In re Byrd (D.C.) 15 F.Supp. 453; In re Wylie (D. C.) 16 F.Supp. 193, 194; In re Price (D. C.) 16 F.Supp. 836, 837. Compare In re Chilton (D.C.) 16 F.Supp. 14, 17; In re Davis (D.C.) 16 F.Supp. 960. It must be assumed" }, { "docid": "8137326", "title": "", "text": "FORD, District Judge. This is a proceeding under section 75 of the Bankruptcy Act as amended (11 U.S.C.A. § 203). This action was initiated by the filing and approval of a petition for composition and extension under section 75 (a-r) of the Bankruptcy Act (11 U.S.C.A. § 203 (a-r). Debtors amended their original petition and asked that they be adjudicated as bankrupts under subsection (s) of section 75 (11 U.S.C.A. § 203 (s). One of the secured creditors, the Bank of Alexandria, has filed a motion to dismiss the proceeding on two grounds, (1) because the act is .unconstitutional, and (2) because the record discloses failure of the debtors to present “in good faith” a proposal of composition and extension, required as a condition precedent to filing the amended petition seeking the benefits of subsection (s). In view of the conclusions hereinafter stated, it is unnecessary to pass upon the constitutionality of the act. It seems to be clear and in harmony with the ruling of most of the courts which have considered the matter that before a farmer is entitled to amend his petition in order to avail himself of subsection (s), it is necessary that he shall have made a proposal to his creditors for .composition and extension under subsections (a-r) and that said proposal must have been made “in good faith.” In re Samuelson (D.C.) 8 F.Supp. 473; In re Hilliker (D.C.) 9 F.Supp. 948; In re Borgelt (D.C.) 10 F.Supp. 113, 116, affirmed in (C.C.A.) 79 F.(2d) 929; and In re Reichert (D.C.) 13 F.Supp. 1. The phrase “good faith” is not defined in the act, hence it is to be given no technical or refined meaning. In common usage it has a well-defined and generally understood meaning. It is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, absence of a design to take an unconscionable advantage of another, and, where employed in connection with legal obligations, it is evidenced by such candor and frankness in recognizing such obligations as reflect sincerity and willingness to perform them." }, { "docid": "8347723", "title": "", "text": "inception of the proceedings. In re Borgelt (C.C.A.7th) 79 F.(2d) 929, November 23, 1935; In re Hilliker (D.C.) 9 F.Supp. 948; In re Samuelson (D.C.) 8 F. Supp, 473. It follows that the court is not authorized to grant the 3-year extension unless it is made to reasonably appear 'that the lien creditor will not suffer any substantial loss in the value of his security by reason of the delay. The original purpose of Acts of Bankruptcy was to bring about a prompt, equal disposition of the debtor’s property among his creditors, and to relieve the debtor of obligations and responsibilities following a business misfortune, and to permit him to start afresh. However, with the change in the condition of the relationship of debtors and creditors, the scope of original acts has been extended to persons, properties, and different debtor contracts. Bankruptcy was thought to be of such importance when the Constitution was drafted as to authorize the Congress to legislate on the subject; the only restriction being that its laws were to be uniform throughout the Union. Louisville Joint Stock Land Bank v. Radford, supra; Hanover National Bank v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113. Section 77 of the Bankruptcy Act (see 11 U.S.C.A. § 205), providing for railroad reorganization, invades the rights of creditors to a much greater-extent than does the act here in question. The Supreme Court sustained that act in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110, and section 77B (see 11 U.S. C.A. § 207), providing for corporate reorganization, invades the rights of creditors more drastically than the act here. That section has been sustained as constitutional. In re Sterba (C.C.A.) 74 F.(2d) 413; In re New Rochelle Coal & Lumber Co. (C.C.A.) 77 F.(2d) 881; Grand Boulevard Investment Company v. Strauss (C.C.A.) 78 F.(2d) 180. It may be' said that the long period of recognized equity receiverships applicable to both railroads and corporations which postponed the payment of debts of such corporations distinguishes" }, { "docid": "8137327", "title": "", "text": "that before a farmer is entitled to amend his petition in order to avail himself of subsection (s), it is necessary that he shall have made a proposal to his creditors for .composition and extension under subsections (a-r) and that said proposal must have been made “in good faith.” In re Samuelson (D.C.) 8 F.Supp. 473; In re Hilliker (D.C.) 9 F.Supp. 948; In re Borgelt (D.C.) 10 F.Supp. 113, 116, affirmed in (C.C.A.) 79 F.(2d) 929; and In re Reichert (D.C.) 13 F.Supp. 1. The phrase “good faith” is not defined in the act, hence it is to be given no technical or refined meaning. In common usage it has a well-defined and generally understood meaning. It is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, absence of a design to take an unconscionable advantage of another, and, where employed in connection with legal obligations, it is evidenced by such candor and frankness in recognizing such obligations as reflect sincerity and willingness to perform them. While considerable latitude must be allowed to meet the circumstances of each particular case, and no hard and fast rule should be prescribed by which to measure good faith under all circumstances, it may be safely observed that in order to measure up to the requirement of the law, integrity of plan and purpose must be reflected • in every proposal for composition and exten sion and mere perfunctory compliance with the letter of the law is not sufficient. The theory of the law under which a good faith proposal is made a condition precedent to the relief provided by subsection (s) presupposes a fair opportunity to creditors to weigh and consider the debtor’s voluntary offer in comparison with the alternative remedy afforded such debtor under the provisions of subsection (s). Certainly, no debtor, acting in good faith, could reasonably expect acceptance by his creditors of a proposal fixing an extension or composition substantially more favorable to him and less favorable to creditors than the terms of subsection (s), and hence a proposal of composition" }, { "docid": "8133646", "title": "", "text": "act thereunder “if he feels aggrieved by the composition and/or extension” (a somewhat obscure phrase in its application but with wdiich we are not here concerned). In the events just mentioned the farmer “may amend his petition or answer, asking to be adjudged a bankrupt” and then petition the court for the benefits of subsection (s), which in short substance may be described as a three-year mortgage moratorium against foreclosure. It is thus seen that there are necessary conditions precedent to the right of the farmer debtor to avail himself of the mortgage moratorium provided by subsection (s). It seems quite clear from section 203 as a whole that the farmer must first have submitted to his creditors a proposal which \"in good faith contains an equitable and feasible method of liquidation for creditors;” and is for their best interests, as well as his own. Unless and until the farmer has made such a proposal which the court can subsequently find complies with these characteristics, subsection (s) is not available to him. And the principal contention of the Bank in this case is that these farmer debtors have not made such a proposal. In numerous federal decisions it has been held that subsection (s) is available to the farmer debtor only on the conditions above stated. In re Borgelt, 79 F. (2d) 929 (C.C.A.7) affirming (D.C.) 10 F.Supp. 113; In re Wilkin (D.C Iowa) 8 F.Supp. 222; In re Samuelson (D.C.Iowa) 8 F.Supp. 473, 474; In re West (D.C.) 10 F.Supp. 407; In re Hilliker (D.C.S.D.Cal.) 9 F.Supp. 948; In re Duvall (D.C.W.D.Va.) 14 F.Supp. 799; In re Siske (D.C.M.D.N.C.). To determine whether the proposal made by the farmer debtors in this case complied with the requirements that (1) it was in good faith; (2) constituted an equitable and feasible method of liquidation for creditors and the financial rehabilitation of the farmer and (3) was for the best interests of creditors, requires a condensed summary of the more important facts regarding the debtors’ property and financial situation at the time of the institution of the proceedings and up to the" }, { "docid": "5894369", "title": "", "text": "the District Judge said: “The term ‘good faith’ is here used as it has been used and applied in various cases arising under this statute, Wright v. Vinton Branch Bank, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736; In re Borgelt, D.C., 10 F.Supp. 113; Id., 7 Cir., 79 F.2d 929; In re Schaeffer, D.C., 14 F.Supp. 807; Knotts v. South Carolina, etc., Bank, 4 Cir., 86 F.2d 551; In re Reichert, D.C., 13 F.Supp. 1; In re Price, D.C., 16 F.Supp. 836. Debtors who invoke the provisions of section 75 for an opportunity to effect a composition or extension with their creditors must approach them in a sincere and honest effort to submit a proposal which offers a definite and reasonable method of liquidating the indebtedness and which can be expected to receive the consideration of reasonable men. Debtors who purport to offer terms of composition or extension merely as a preliminary step to taking later refuge under subsection (s) are not acting in good faith. The mere gesture of making some sort of an offer with no reasonable expectation that it will be accepted is not sufficient; nor is an offer based only on roseate but illogical hopes of what the debtor may, at some future time, be a'ble to do. In the cases hereinbefore cited, and many others, the courts have had occasion to decide the conditions under which a debtor may proceed under subsection (s) and they are in unison in holding that he has no such right unless he has previously made a bona fide effort to agree with his creditors upon an extension or composition. Offers of composition or extension which offer no reasonable prospect of payment of the indebtedness, or which are vague and indefinite, or which are unreasonable in their treatment of the creditor, or which are contingent, or whicn are based on conditions improbable of fulfillment — all of these are held to be lacking in the good faith which should mark the efforts of a debtor to agree with his creditors. “In the interpretation of this statute in Wright" }, { "docid": "22697624", "title": "", "text": "re Vater, id., 631; In re Schaeffer, id., 807; In re Duvall, id., 799; In re Byrd, 15 id. 453; In re Wylie, 16 id. 193, 194; In re Price, id., 836, 837. Compare In re Chilton, 16 F. Supp. 14, 17; In re Davis, id., 960. It must be assumed that the situation of the present debtor was not beyond all reasonable hope of rehabilitation, else he could not have qualified to file his petition at the outset. Compare Tennessee Publishing Co. v. American National Bank, 299 U. S. 18, 22. This provision is not inconsistent with the constitutional require* ment that laws established by Congress on the subject of bankruptcies shall be uniform throughout the United States. Art. 1, § 8, cl. 4. The problem dealt with may present significant variations in different parts of the country. By Paragraph 6 the Bankruptcy Act adjusts its operation to these variations, as under other provisions it has adjusted its operation to the differing laws of the several States affecting dower, exemptions, and other property rights. Compare Hanover National Bank v. Moyses, 186 U. S. 181, 189; Stellwagen v. Clum, 245 U. S. 605, 613. The authority granted by Paragraph 6 does not exceed limits of authority familiarly exercised by courts. See Standard Oil Co. v. United States, 221 U. S. 1, 69; compare Chastleton Corp. v. Sinclair, 264 U. S. 543. Where the meaning of legislation is doubtful or obscure, resort may be had in its interpretation to reports of Congressional committees which have considered the measure, (McLean v. United States, 226 U. S. 374, 380; Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 435); to exposition of the bill on the floor of Congress by those in charge of or sponsoring the legislation, (Duplex Printing Press Co. v. Deering, 254 U. S. 443, 475; Richbourg Motor Co. v. United States, 281 U. S. 528, 536); to comparison of successive drafts or amendments of the measure, (United States v. Pfitsch, 256 U. S. 547, 551; United States v. Great Northern Ry. Co., 287 U. S. 144, 155);" }, { "docid": "22697622", "title": "", "text": "right to bid at the sale; and this was made clear on the floor of the House by Representative Sumners, of the Committee on the Judiciary. See 79 Cong. Rec. 14333. The beneficiary under a mortgage deed of trust in Virginia is permitted to bid in the property at the sale. See, e. g., Ashworth v. Tramwell, 102 Va. 852, 858, 47 S. E. 1011; Title Insurance Co. v. Industrial Bank, 156 Va. 322, 327, 157 S. E. 710; Everette v. Woodward, 162 Va. 419, 174 S. E. 864. Compare Easton v. German-American Bank, 127 U. S. 532, 538. This clause is qualified by alternative provisos, one for payment at a reappraised value, the other for a public sale to be held upon the mortgagee’s request at the time when the stay expires, whether by lapse of time or by the mortgagor’s payment into court of the appraised or reappraised value. See Note 3, supra. This construction is in harmony with the requirement of good faith in the initiation of proceedings under § 75. Relief under § 75 (s) may be obtained only by one who has made a bona fide attempt, and has failed, to effect a composition under § 75, (a)-(r). The offer of composition must be in good faith, [§ 75, (c), (i), 47 Stat. 1471, 1472], and if the debtor is beyond all reasonable hope of financial rehabilitation, and the proceedings under § 75 cannot be expected to have any effect beyond postponing inevitable liquidation, the proceedings will be halted at the outset. The practical administration of § 75 in the lower courts already affords ample evidence of the substantial protection afforded the creditor by this requirement of good faith in the initiation of proceedings under subsections (a)-(r). See In re Borgelt, 79 F. (2d) 929; Dallas Joint Stock Land Bank v. Davis, 83 id. 322, 323; Stevenson v. Clark, 86 id. 330; Knotts v. First Carolinas Joint Stock Land Bank, id. 551; In re Reichert, 13 F. Supp. 1, 4, 5; In re Paul, id., 645, 647; In re Buxton’s Estate, 14 id. 616; In" }, { "docid": "8377784", "title": "", "text": "proceedings will be halted.at the outset. The practical administration of section 75 in the lower courts already affords ample evidence of the substantial protection afforded the creditor by this requirement of good faith in the initiation of proceedings under subsections (a)-(r). See In re Borgelt [7 Cir.], 79 F.2d 929; Dallas Joint Stock Land Bank v. Davis [5 Cir.], 83 F.2d 322, 323; Steverson v. Clark [4 Cir.], 86 F.2d 330; Knotts v. First Carolinas Joint Stock Land Bank [4 Cir.], 86 F.2d 551; In re Reichert (D.C.) 13 F.Supp. 1, 4, 5; In re Paul (D.C.) 13 F.Supp. 645, 647; In re Buxton’s Estate (D.C.) 14 F.Supp. 616; In re Vater (D.C.) 14 F.Supp. 631; In re Schaeffer (D.C.) 14 F.Supp. 807; In re Duvall (D.C.) 14 F.Supp. 799; In re Byrd (D.C.) 15 F.Supp. 453; In re Wylie (D. C.) 16 F.Supp. 193, 194; In re Price (D. C.) 16 F.Supp. 836, 837. Compare In re Chilton (D.C.) 16 F.Supp. 14, 17; In re Davis (D.C.) 16 F.Supp. 960. It must be assumed that the situation of the present debtor was not beyond all reasonable hope of rehabilitation, else he could not have qualified to file his petition at the outset. Compare Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 81 L.Ed. 13.” Appellant seeks to avoid the effect of the portion of the Supreme Court’s opinion which holds that the right of a farmer-debtor to be adjudged a bankrupt and to remain in bankruptcy under Section 75 (s) is not an absolute right, by asserting that footnote 6; on pages 462 and 463, 57 S.Ct. page 562, is not part of the opinion in that case and does not accurately represent the views of the Supreme Court, and that that Court in several subsequent decisions ' has made that clear. No case called to our attention sustains this assertion of the appellant. We have no reason to believe that the opinion delivered by Mr. Justice Brandeis,-including the footnote on pages 462 and 463, 57 S.Ct. page 562, does not mean’ exactly" }, { "docid": "8133647", "title": "", "text": "contention of the Bank in this case is that these farmer debtors have not made such a proposal. In numerous federal decisions it has been held that subsection (s) is available to the farmer debtor only on the conditions above stated. In re Borgelt, 79 F. (2d) 929 (C.C.A.7) affirming (D.C.) 10 F.Supp. 113; In re Wilkin (D.C Iowa) 8 F.Supp. 222; In re Samuelson (D.C.Iowa) 8 F.Supp. 473, 474; In re West (D.C.) 10 F.Supp. 407; In re Hilliker (D.C.S.D.Cal.) 9 F.Supp. 948; In re Duvall (D.C.W.D.Va.) 14 F.Supp. 799; In re Siske (D.C.M.D.N.C.). To determine whether the proposal made by the farmer debtors in this case complied with the requirements that (1) it was in good faith; (2) constituted an equitable and feasible method of liquidation for creditors and the financial rehabilitation of the farmer and (3) was for the best interests of creditors, requires a condensed summary of the more important facts regarding the debtors’ property and financial situation at the time of the institution of the proceedings and up to the present time. There was much testimony on this point but the principal facts established are these. The mortgage was made December 2, 1925, for $22,000 at 5%% interest. It covered the debtors’ large dairy farm in Montgomery County, consisting of 517 acres, most of which was suitable for general farming but the principal productive activity was the conduct of a large dairy farm. The mortgage conditions were apparently complied with until the end of 1931, since which time the debtors have made no payment on account of the mortgage either principal or interest although some small sums otherwise on hand have been credited by the Bank to the mortgage, the last being on December 18, 1933. The net balance due as of the present time is $23,978.74. Taxes at the rate of nearly $500 a year are in default for 1933, 34 and 35. 65 acres of the farm have already been sold for unpaid taxes (although presumably still subject to redemption) and 40 acres more are advertised for sale on April 13, 1936. For" }, { "docid": "5894371", "title": "", "text": "v. Vinton Branch Bank, 300 U.S. 440 at page 462, 57 S.Ct. 556, 562, 81 L.Ed. 736, Mr. Justice Brandéis, in a footnote to his opinion says: ‘Relief under section 75 (s) may be obtained only by one who has made a bona fide attempt,' and has failed, to effect a composition under section 75, (a) to (r).”’ In re Schaeffer, D.C., 14 F.Supp. 807, 811, appeal ' denied Schaeffer v. Federal Land Bank, 4 Cir., 84 F.2d 1012, Judge Chesnut says: “It is thus seen that there are necessary conditions precedent to the right of the farmer debtor to avail himself 'of the mortgage moratorium provided by subsection (s). It seems quite clear from section 203 as a whole that the farmer must first have submitted to his creditors a proposal which ‘in good faith contains an equitable and feasible method of liquidation for creditors,’ and is for their best interests, as well as his own. Unless and until the farmer has made such a proposal which the court can subsequently find complies with these characteristics, subsection (s) is not available to him. And the principal contention of the Bank in this case is that these farmer debtors have not made such a proposal. In numerous federal decisions it has been held that subsection (s) is available to the farmer debt- or only on the conditions above stated.” See, also, In re Borgelt, 7 Cir., 79 F.2d 929, at page 930, where, in affirming a refusal of the District Court to allow proceedings under subsection (s), the Appellate Court said: “That subsection [s] presupposes a probability of eventual debt liquidation. It further presupposes a prior good faith effort on the part of the debtor to propose or accept a plan which is reasonably calculated to effect a debt liquidation. Here there was no bona fide plan presented by the debtors, and the conciliator after a hearing reported that fact to the court.” The adverse decision upon the appeals of Elizabeth E. Massey in cases Nos. 4292 and 4297 requires like action upon the appeals of Margaret P. Massey, in" }, { "docid": "8133669", "title": "", "text": "I reach the conclusion that the debtors have not complied with the provisions of section 203 to entitle them to the three-year moratorium provided in subsection (s); and therefore-the petition of the Bank, that the ex parte order of the court adjudicating the debtors bankrupts in accordance with subsection (s) should be rescinded, and that the debtors’ petitions under section 75 of the Bankruptcy Act, as amended (title 11, U. S.C.A. § 203) should be dismissed, must be granted. The debtors may, of course, voluntarily avail themselves of the ordinary bankruptcy law. Counsel should submit the appropriate orders in due course. The first Frazier-Lemke Act, which added the original subsection (s) to section 75 of the Bankruptcy Act (48 Stat. 1289) was held unconstitutional by the Supreme Court in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106. See, also, In re Bradford (D.C. Md.) 7 F.Supp. 665, affirmed Bradford v. Fahey (C.C.A.4) 77 F.(2d) 992. Thereafter on August 28, 1935, Congress passed - the second Frazier-Lemke Act, 49 Stat. 942 (11 U.S.C.A. § 203 (s). This second Frazier-Lemke Act has been likewise held unconstitutional in the following cases: In re Lowmon (C.C.A. 7) 79 F.(2d) 887; In re Diller (D.C.Cal.) 13 F.Supp. 249; In re Davis (D.C.N.Y.) 13 F.Supp. 221; In re Lindsay (D.C. Iowa) 12 F.Supp. 625; In re Sherman (D.C.Va.) 12 F.Supp. 297; In re Young (D.C.Ill.) 12 F.Supp. 30; In re Tsehoepe (D.C.S.D.Tex.) 13 F.Supp. 371, and In re Schoenleber (D.G.Neb.) 13 F. Supp. 375; but has been held constitutional in the following eases: In re Cole (D.C.Ohio) 13 F.Supp. 283; In re Reichert (D.C.Ky.) 13 F.Supp. 1; In re Slaughter (D.C.Tex.) 12 F.Supp. 206; In re Bennett (D.C.Mo.) 13 F.Supp. 353, Otis, United States District Judge, and In re James M. Paul (D.C. Iowa) 13 F. Supp. 645, Dewey, United States District Judge. No opinion filed." }, { "docid": "11914468", "title": "", "text": "property rights created by the laws of the states. Courts of bankruptcy must administer the debtor’s property as they find it. They cannot undo what has already been lawfully done by a court of competent jurisdiction. Under article 2219, R.S. Texas, it is the sheriff’s ministerial duty to put the purchasers in possession thirty days after the sale. No period of redemption is allowed, nor is any judicial proceeding or order necessary. Compare In re, Borgelt (D.C.) 10 F.Supp. 113. The dominant title having already vested in appellant, the debtors were wholly without any enforceable title to or interest in the lands over which the court of bankruptcy could acquire jurisdiction or which it could administer when they filed their petitions under section 75. Nor had the debtors any enforceable right to possession which could be dealt with by a court of bankruptcy. Having neither an enforceable title nor right to possession, section 75 does not contemplate that the debtors be protected in a bare occupancy at sufferance which they could not maintain under the laws of their state. Possession of the latter character is not a property right. Lafayette Life Ins. Co. v. Lowmon (C.C.A. 7, decided November 15, 1935) 79 F.(2d) 887; In re Faber (D.C.) 11 F.Supp. 555; In re Knauft (D.C.) 10 F.Supp. 785; In re Nelson (D.C.) 9 F.Supp. 657. To put appellant in possession pursuant to the sheriff’s sales (article 2219, R.S. Texas) would not constitute a “seizure” as contemplated by section 75 (o) (6), 11 U.S.C.A. § 203(o) (6). Seizure was complete, and the property in custody of the state court which rendered the judgments, when the execution was levied and the levy indorsed on the writ. Wilkinson v. Goree (C.C.A.) 18 F.(2d) 455, certiorari denied 274 U.S. 761, 47 S.Ct. 770, 71 L.Ed. 1339; article 3793, R.S. Texas. In each case, the decree appealed from is reversed, and the cause remanded, with directions to dismiss the bill of complaint." }, { "docid": "9973350", "title": "", "text": "for dismissal of these proceedings must be granted for the following reasons. Subsection (s) of section 75 of the act, as amended (11 U.S.C.A. § 203 (s), grants permission to one who is actually a farmer within the definition of subsection (r) of that section, as amended (11 U.S.C.A. § 203 (r), and who has, in good faith, petitioned for a composition or an extension, to ask for his adjudication in bankruptcy and for further proceedings under subsection (s), the effect of which is to place such petitioner in unmolested possession of his real estate for the period of the statutory moratorium, subject only to the orders of the' court with respect to the terms and conditions as to payment of rental or installments on debts due to secured or unsecured creditors, or payment of both, as the court may deem proper in the interest of creditors. But any reasonable interpretation of this subsection must presuppose a probability of the debtor’s eventual liquidation of his debts. This in effect means that it is not sufficient for the petitioner merely to institute the proceedings with the wild hope that he will be able to have accepted, by the requisite number and amount of creditors, a plan for liquidation of his debts, but the hope must itself be founded upon reason, which means that there must be some probability of eventually liquidating his debts in conformity with the plan. In short, the act is not to be construed as affording protection to every petitioner who invokes its provisions without having substantially more to recommend him to the court for relief than his bare status as a farmer and his need of assistance. See In re Allen D. Schaeffer & George W. Schaeffer, 14 F.Supp. 807, decided by this court on April 2. 1936; also, In Re Borgelt (C.C.A.) 79 F.(2d) 929; Id. (D.C.) 10 F.Supp. 113. The proposal offered by the present petitioner, Byrd, was the folio-wing: “First: To the. Kent County Savings Bank, holder of mortgage claim amounting to $12,305.91. The same amount to be repaid by a mortgage of $10,000.00" }, { "docid": "15105449", "title": "", "text": "of the bill and accepted by the Congress without dissent. We construe it as giving the courts such power.” Our opinion is that, under the interpretation placed by the Supreme Court upon the language of Sec. 75 (s), a farmer-debtor who has no equity, either present or potential, in his farm, and no reasonable prospects of being able to pay or refund the liens upon it within a three-year extension, is not entitled to relief under that section. Judges Nordbye and Joyce, in the case of In re Anderson, D.C., 22 F.Supp. 928, considered the question as to what constituted a reasonable hope of financial rehabilitation. Their conclusion is well stated on page 932: “There must appear a reasonable probability that if given the benefits of the act, the debtor will be able to pay a reasonable rental, exercise good husbandry in the management of the operations of the farm, and make suitable provisions to refinance himself, so that he can conserve his equities by either ■ paying his secured creditors in full, or with their consent, the appraised value of his property. If the granting of a three-year stay cannot be reasonably expected to result in saving or preserving his equities in his real or personal property, then he cannot be considered as one who is able to rehabilitate himself. A fortiori,.if he has no equities to preserve, and if it is extremely improbable that any equities will materialize during the three-year period, then there is nothing for the act to administer.” Other cases which appear to sup'port the view that a farmer debtor who has no present or potential equity in his property and no ' reasonable chance of paying or refunding in full the mortgages upon it, may not take advantage of Sec. 75(s), are: Massey v. Farmers & Merchants Nat. Bank & Trust Co., 4 Cir., 94 F.2d 526; Pearce v. Coller, 3 Cir., 92 F.2d 237; Dallas Joint Stock Land Bank v. Davis, 5 Cir., 83 F.2d 322; In re Cox, D.C., 22 F. Supp. 925; In re Palmer, D.C., 21 F.Supp. 628; In re" }, { "docid": "12362900", "title": "", "text": "In re Lessler, 74 F.(2d) 249 (C.C.A.2); In re Holzman, 69 F.(2d) 828 (C.C.A.2) ; In re Miller (D.C.) 5 F.Supp. 913; In re Beckman (D.C.) 6 F.Supp. 957; In re Slohm (D.C.) 10 F.Supp. 351, and In re Hochberg (D.C.) 17 F.Supp. 916. I am of the opinion that the recommendation of the referee is based upon an erroneous conclusion as to the law of the case. The essentials of the statutory bar are: (1) That the written statement was made for the purpose of obtaining credit; (2) that it was materially false; and (3) that the credit was obtained upon it. In re Brownstone (D.C.) 17 F.Supp. 402, 406; Gerdes v. Lustgarten, 266 U.S. 321, 45 S.Ct. 107, 69 L.Ed. 309, and Morimura, Arai & Co. v. Taback, 279 U.S. 24, 49 S.Ct. 212, 73 L.Ed. 586. It is not essential that, in extending credit, sole reliance be placed upon the false statement, but partial reliance thereon, in good faith, is sufficient. In re Hochberg, supra; Mullen v. First National Bank, 57 F.(2d) 711 (C.C.A.10); In re Muscara (D.C.) 18 F.(2d) 606; In re Applebaum, 11 F.(2d) 685 (C.C.A.2). The admitted facts, above referred to, are sufficient to make out a prima facie case on behalf of the objecting creditor, and, in the absence of anything to the contrary, intent to deceive, on the part of the bankrupt, not being susceptible of direct proof, would be regarded as established by reasonable and necessary inference from such facts. The burden of showing, by a preponderance of evidence, countervailing or explanatory facts and circumstances sufficient to contravene the inference of intent to deceive, clearly rests upon the bankrupt. To permit bankrupts, who admit the commission of acts forbidden by section 14 of the Bankruptcy Act, as amended, 11 U. S.C.A. § 32, to shield themselves from the penalties imposed, by merely interposing their own assertions of honest motives and innocent intent, uncorroborated by additional evidence, clear and convincing in character, would result in affording an easy method of frustrating the purposes of the law. One who, by his own admission," }, { "docid": "5894368", "title": "", "text": "was noted that was as essential to the maintenance of the original as of the amended petition. The debtor was not denied an opportunity for a fair hearing. We are also of-the opinion that the action of the District Judge in dismissing both petitions was in harmony with the decision of the Supreme Court in Wright v. Vinton Branch Bank, 300 U.S. 440, 462, 57 S.Ct. 556, 561, 81 L.Ed. 736. It was there said that the benefits of sectio.n 75 (s) may be obtained only by one who has made a bona fide attempt, and has failed, to effect a composition under section 75 (a) to (r), 11 U.S.C.Á. § 203 (a-r) ; and that the offer of composition must be in good faith, and if the debtor is beyond all reasonable hope of financial rehabilitation and the proceedings under section 75 can have no effect beyond postponing inevitable liquidation, the proceedings will be halted at the outset. See, also, Steverson v. Clark, 4 Cir., 86 F.2d 330. On this phase of the case the District Judge said: “The term ‘good faith’ is here used as it has been used and applied in various cases arising under this statute, Wright v. Vinton Branch Bank, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736; In re Borgelt, D.C., 10 F.Supp. 113; Id., 7 Cir., 79 F.2d 929; In re Schaeffer, D.C., 14 F.Supp. 807; Knotts v. South Carolina, etc., Bank, 4 Cir., 86 F.2d 551; In re Reichert, D.C., 13 F.Supp. 1; In re Price, D.C., 16 F.Supp. 836. Debtors who invoke the provisions of section 75 for an opportunity to effect a composition or extension with their creditors must approach them in a sincere and honest effort to submit a proposal which offers a definite and reasonable method of liquidating the indebtedness and which can be expected to receive the consideration of reasonable men. Debtors who purport to offer terms of composition or extension merely as a preliminary step to taking later refuge under subsection (s) are not acting in good faith. The mere gesture of making some sort" }, { "docid": "22697623", "title": "", "text": "under § 75 (s) may be obtained only by one who has made a bona fide attempt, and has failed, to effect a composition under § 75, (a)-(r). The offer of composition must be in good faith, [§ 75, (c), (i), 47 Stat. 1471, 1472], and if the debtor is beyond all reasonable hope of financial rehabilitation, and the proceedings under § 75 cannot be expected to have any effect beyond postponing inevitable liquidation, the proceedings will be halted at the outset. The practical administration of § 75 in the lower courts already affords ample evidence of the substantial protection afforded the creditor by this requirement of good faith in the initiation of proceedings under subsections (a)-(r). See In re Borgelt, 79 F. (2d) 929; Dallas Joint Stock Land Bank v. Davis, 83 id. 322, 323; Stevenson v. Clark, 86 id. 330; Knotts v. First Carolinas Joint Stock Land Bank, id. 551; In re Reichert, 13 F. Supp. 1, 4, 5; In re Paul, id., 645, 647; In re Buxton’s Estate, 14 id. 616; In re Vater, id., 631; In re Schaeffer, id., 807; In re Duvall, id., 799; In re Byrd, 15 id. 453; In re Wylie, 16 id. 193, 194; In re Price, id., 836, 837. Compare In re Chilton, 16 F. Supp. 14, 17; In re Davis, id., 960. It must be assumed that the situation of the present debtor was not beyond all reasonable hope of rehabilitation, else he could not have qualified to file his petition at the outset. Compare Tennessee Publishing Co. v. American National Bank, 299 U. S. 18, 22. This provision is not inconsistent with the constitutional require* ment that laws established by Congress on the subject of bankruptcies shall be uniform throughout the United States. Art. 1, § 8, cl. 4. The problem dealt with may present significant variations in different parts of the country. By Paragraph 6 the Bankruptcy Act adjusts its operation to these variations, as under other provisions it has adjusted its operation to the differing laws of the several States affecting dower, exemptions, and other property rights." } ]

[ { "docid": "22272333", "title": "", "text": "that time, Mr. Dwyer claims that he told Mr. Foote that his client intended to avoid Avco’s lien under § 522(f) of the Code, or words to that effect. Mr. Foote alleges this was not the case. For purposes of this Opinion, I will assume that Mr. Dwyer’s version of the discussion between himself and Mr. Foote is correct. Thereafter, the debtors discharge was duly entered. No motion or complaint seeking to avoid Avco’s lien under § 522(f) was ever filed or served upon Avco, either prior to the grant of the discharge to debtor or since. Thereafter, Avco filed a complaint against the debtor in state court seeking to recover the items pledged as security for the loan to debtor. To stop that action, debtor seeks an order permanently enjoining Avco from proceeding in the state court on the ground that Avco had notice of debtors intent to avoid their lien and since Avco did nothing to prevent the avoidance, the lien is avoided as a matter of law, Avco is an unsecured creditor discharged in the proceeding and subject to the injunction contained in the discharge entered pursuant to § 727 of the Code. This motion raises two issues. The first relates to the type of notice to be given by a debtor to a creditor of the debtor’s intent under § 522(f), and the second is the time frame in which such notice must be given. To answer the first question one must examine § 522(f). That section permits a debtor to avoid a non-purchase money, non-possessory lien on certain types of property enumerated therein to the extent such lien impairs the debtor’s exemption. The section is permissive. It is not automatic. It permits a debtor to avail himself of its lien avoidance provisions. But if the debtor does not choose to avoid the liens, it seems to me that the lien is not avoided. In other words, the debtor must act affirmatively to avail himself of the provisions of § 522(f). It therefor is necessary to determine what affirmative action a debtor must take. There are" } ]

[ { "docid": "13780427", "title": "", "text": "explained, because a creditor is normally aware that his security interest is subject to avoidance by a bankrupt debtor, delay in filing an avoidance action is not in and of itself prejudicial. See Peterson v. Thorp Credit & Thrift Co., 26 B.R. 942 (Bkrtcy.D.Minn.1983); In re Yazzie, 24 B.R. 576, 578 (Bkrtcy. 9th Cir.1982); In re Montney, 17 B.R. 353 (Bkrtcy.E.D.Mich.1982); In re Swanson, 13 B.R. at 855. In this case defendants argued below only that they incurred additional attorneys’ fees and costs because of plaintiffs’ delay. Creditors expended fifteen dollars in filing fees and one hundred fifty dollars in attorneys’ fees in executing their lien. This extra cost is attributable to plaintiffs’ delay; the execution costs would have been saved if prior to discharge and prior to the lifting of the automatic stay debtors had sought avoidance. These costs do not, however, prejudice creditors so severely that the present action should be barred. The right of a debtor to free himself of liens against property which Congress has exempted under section 522(d) should not be vitiated because of some minimal additional attorney’s fees and costs incurred by a creditor. The equitable solution in cases of this type is to condition the debtor’s right to file his lien avoidance action on his payment to the creditor of any extra costs attributable to that delay. See In re Barner, 20 B.R. 428, 430 (Bkrtcy.E.D.Wis.1982); In re Montney, 17 B.R. at 358; In re Bennett, 13 B.R. 643, 644 (Bkrtcy.W.D.Mich.1981). Cases may arise where a delay is so long that a creditor will be prejudiced sufficiently to bar a lien avoidance action. There may be other cases where debtors act with such lack of good faith as to bar a post-discharge avoidance complaint. In addition, there are unsettled legal questions which, if resolved adversely to debtors, might affect the success of a delayed lien avoidance action. In the instant case, however, where debtors acted in good faith and filed their lien avoidance action only four months after discharge and before the case in bankruptcy was closed, and where creditors suffered no prejudice" }, { "docid": "18568097", "title": "", "text": "costs in executing its judgment lien were directly attributable to the debtor’s failure to bring a pre-discharge lien avoidance action. Noble, supra, at 651. The Noble court found that incurring these costs did not sufficiently prejudice the creditor so as to justify barring the debtors’ statutorily conferred lien avoidance right, concluding: The equitable solution in cases of this type is to condition the debtor’s right to file his lien avoidance action on his payment to the creditor of any extra costs attributable to that delay. Id. [emphasis added]. See also In re Barner, 20 B.R. 428, 430 (Bankr.E.D.Wisc.1982); In re Montney, 17 B.R. 353, 358 (Bankr.E.D. Mich.1982); In re Bennett, 13 B.R. 643, 644 (Bankr.W.D.Mich.1981). However, the mere expenditure of attorneys fees and costs by the creditor post-discharge is not, in all instances, reason to require a debtor to pay those fees as a condition of reopening his case to permit the § 522(f) action to proceed. In In re Webb, 48 B.R. 454 (Bankr.E.D.Va.1985), a creditor incurred legal costs in excess of $12,000 in connection with post-discharge foreclosure proceedings against the debtors. The debtors did not file their motion to avoid the creditor’s lien until seven months after their discharge. This delay was primarily due to an action which the creditor brought to enjoin another lienholder from foreclosing on the debtors’ property. The bankruptcy court (in a Hawkins jurisdiction) granted the debtors’ motion to reopen their case. On appeal, the creditor raised the issue of reimbursement of its post-petition legal fees, and although affirming the bankruptcy court’s judgment, the district court remanded the case for consideration of this question. On remand, the Webb court followed Noble and held that it had discretion to condition reopening of a case on payment by the debtor of the creditor’s costs and fees, but stated: ... [I]t should not condition post-discharge relief under § 522(f) unless a creditor can demonstrate by clear and convincing evidence that the debtor was guilty of unreasonable delay which prejudiced that creditor, i.e., laches. 48 B.R. at 458. The Webb court found that the debtors’ seven month delay" }, { "docid": "18568098", "title": "", "text": "connection with post-discharge foreclosure proceedings against the debtors. The debtors did not file their motion to avoid the creditor’s lien until seven months after their discharge. This delay was primarily due to an action which the creditor brought to enjoin another lienholder from foreclosing on the debtors’ property. The bankruptcy court (in a Hawkins jurisdiction) granted the debtors’ motion to reopen their case. On appeal, the creditor raised the issue of reimbursement of its post-petition legal fees, and although affirming the bankruptcy court’s judgment, the district court remanded the case for consideration of this question. On remand, the Webb court followed Noble and held that it had discretion to condition reopening of a case on payment by the debtor of the creditor’s costs and fees, but stated: ... [I]t should not condition post-discharge relief under § 522(f) unless a creditor can demonstrate by clear and convincing evidence that the debtor was guilty of unreasonable delay which prejudiced that creditor, i.e., laches. 48 B.R. at 458. The Webb court found that the debtors’ seven month delay was not laches, nor was it unreasonable and, therefore, declined to condition the debtors’ right to file their lien avoidance action on payment of the creditor’s legal costs. This Court is bound by Yazzie and, therefore, in the absence of prejudicial delay, must reopen a closed case to permit a debtor to file a § 522(f) lien avoidance action. Yazzie, supra, at 576. Demonstrating “prejudicial delay” is the burden of the creditor, and is determined by reference to the equitable doctrine of laches. Since laches depends on the facts and circumstances of each case, equity does not arbitrarily limit the time within which the debtor may exercise his § 522(f) lien avoidance right. See, Matter of Swanson, 13 B.R. 851, 854 (Bankr.D.Idaho 1981). In the instant case, the debtor is not “guilty” of laches. The primary reason Ricks did not avoid Aetna’s alleged lien during the pendency of his case is because he did not know the lien existed. Ricks’ schedule of liabilities lists no secured creditors. Aetna was scheduled as an unsecured creditor and" }, { "docid": "11419196", "title": "", "text": "problematic because, under the court’s reasoning, a secured creditor could cut off a debtor’s right to amend his or her exemption schedule even before a case is closed by obtaining abandonment of the property securing the debt owed to the creditor. See § 554(a) and (b). The bankruptcy court’s focus on matters of estate administration in the context of a § 522(f)(1) motion is misplaced for an additional reason. A debtor’s right to avoid a lien under § 522(f) is “a ‘personal’ right of the debtor which exists independent of case administration.” In re Ricks, 89 B.R. 73, 75 (9th Cir. BAP 1988). Indeed, the purpose of lien avoidance under § 522(f) is to protect a debtor’s exemptions. In re Pederson, 230 B.R. 158, 163 (9th Cir. BAP 1999). The consequences of closing a case “are limited.” Menk, 241 B.R. at 911. The Bankruptcy Code contemplates that various activities may occur after closing. The fact that the estate has been fully administered merely means that all available property has been collected and all required payments made. Similarly, the completion of the trustee’s work does not mean that everything has been done that may need to be done. Id. Lien avoidance actions are among the “various activities” that may occur after a case is closed. In the absence of prejudice, lien avoidance actions are not barred either by entry of a discharge order or the closing of the bankruptcy case. Ricks, 89 B.R. at 75. C. There is no difference between a never-closed case and a reopened case with respect to amended exemption claims. The bankruptcy court, in its Oster decision, held that debtors may not file amended schedules in a reopened case without court approval. 293 B.R. at 249-50. We disagree. There is no basis in the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure for imposing such a requirement. If the drafters had intended to require court permission before the filing of amended schedules in reopened cases, they would have explicitly said so. Rule 1009(a) states that the debt- or has the absolute right to amend any “list," }, { "docid": "14634047", "title": "", "text": "no post-discharge efforts to reach exempted property.’’), this avenue of relief may also be unavailable. . Section 522(f) provides: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is — (1) a judicial lien- Other decisions have noted this potential problem. See In re Jeffers, 3 B.R. 49, 56 n. 23 (Bankr.N.D.Ind.1980); In re McQuaige, 38 B.R. 261, 263 (Bankr.D.Md.1984) (post-petition judgment lien will not impair exemption only because entireties property is not exempt from process by joint creditors). One court simply refused to apply § 522(f)(1), because it believed the result would be untenable when only one spouse is in bankruptcy and there is no limit on the amount of the exemption. In re Marino, 27 B.R. 282 (Bankr.N.D.Ind.1983). . We have held that a debtor may reopen a closed case to file a post-discharge complaint under § 522(f) to avoid a prepetition lien. Hawkins v. Landmark Finance Co., 727 F.2d 324 (4 Cir.1984). Section 522(f) may be unavailable to protect afteracquired property of the debtor, In re Clowney, 19 B.R. 349 (Bankr.M.D.N.C.1982), but we see no similar barriers to application of § 522(f) to pre-petition property. See In re Tarrant, 19 B.R. 360 (Bankr.D.Alaska 1982) (pre-petition liens avoided by post-discharge complaint); cf. In re Stephenson, 19 B.R. 185 (Bankr.M.D.Tenn.1982) (post-discharge complaint to reopen case and avoid pre-petition judicial lien under § 522(f)(1); relief denied because exemption under Tennessee law not impaired); In re Rizzo, 21 B.R. 913 (Bankr.W.D.N.Y.1982) (post-discharge consideration of § 363(h) and § 522(b)(2)(B) issues). Moreover, it would be against basic bankruptcy principles of equitable distribution to treat a pre-petition lien creditor worse than a prepetition unsecured creditor who later obtains a lien on the debtor’s property. . One commentator noted the potential mischief that § 522(c) might work and suggested that courts effectively read the statute to provide that “property exempted under this section [except under" }, { "docid": "9588078", "title": "", "text": "be totally consistent with the reasoning of our local Court of Appeals in Becker, and the Eleventh Circuit Court of Appeals in Miller, supra, 767 F.2d at 1559 n. 4. We do acknowledge that the Stark holding may be viewed as béing, to a certain degree, disputed by the 2-1 majority decision of the Fourth Circuit Court of Appeals in Hawkins v. Landmark Finance Co., 727 F.2d 324 (4th Cir.1984). Although the Hawkins majority adopts the rule that it is largely in the discretion of the bankruptcy court as to whether a case should be reopened, it proceeds to affirm a bankruptcy court decision with which we could not agree, i.e., that a motion to reopen should be denied because the debtors delayed eight months in seeking to reopen their case and the creditor suffered “prejudice” by expending funds on a foreclosure proceeding in state court in the interim between the case closing and the filing of the motion to reopen. Like the dissenting judge in Hawkins, we do not believe that “the incurrence of court costs and counsel fees ... constitutes prejudice in the legal sense so as to provide a sufficient basis for the bankruptcy court to exercise its discretion in favor of not reopening the case.” Of course, the Hawkins majority acknowledged the fact that it was merely sustaining the bankruptcy court’s exercise of discretion, not endorsing this decision as the one it would have reached had its scope of review been plenary. We note that an aura of liberality and a willingness to accept the reasoning of the Stark case has pervaded almost all of the Third Court lower court decisions in this area. See Noble v. Yingling, 37 B.R. 647 (D.Del.1984) (bankruptcy court’s denial of debtors’ motion on ground that prejudice to creditor arose as a result of intervening lawsuit reversed); In re Skakalski, 67 B.R. 448 (Bankr.W.D.Pa.1986) (motion to reopen granted despite series of delays and errors attributable to movant’s counsel); In re Ali, 58 B.R. 539 (Bankr.E.D.Pa.1986) (Stark test specifically approved by former Chief Judge Goldhaber); In re Davidson, 36 B.R. 439 (Bankr.D.N.J.1983)" }, { "docid": "18568093", "title": "", "text": "MEMORANDUM DECISION RE: MOTION TO REOPEN CLOSED CASE AND AVOID LIEN LOUISE DeCARL MALUGEN, Bankruptcy Judge. Charles A. Ricks (“Ricks”), the debtor in a closed Chapter 7 case, has moved the Court to reopen his case and to avoid the lien of ITT Financial Services, formerly known as Aetna Finance Company (“Aet-na”), on his household furniture. Aetna opposes this motion, claiming that the debt- or should not be permitted to reopen his case after his discharge because Aetna has commenced a state court action to foreclose the lien which the debtor failed to avoid. FACTS Ricks filed his voluntary Chapter 7 on April 16, 1985. Aetna was scheduled as an unsecured creditor. The statement of intention filed in compliance with 11 U.S.C. § 521 indicated that Ricks had no secured consumer debts. The debtor claimed all household goods and furniture as exempt, which exemption was allowed. The Declaration of Harold D. Thompson, attorney for Ricks, states that on June 4, 1985, Thompson received a phone call from an Aetna representative who said he had not received the Chapter 7 bankruptcy notice. Thompson provided the filing date and case number. On August 19,1985, the debtor’s discharge was entered. On October 24, 1985, Thompson received a demand letter from Aetna. On October 30, 1985, Thompson wrote Aetna’s counsel, Mr. Jerry Suppa, requesting copies of the note, security agreement, financing statement and list of collateral. On November 4, 1985, Mr. Suppa forwarded copies of all the documents except the list of collateral. On November 18, 1985, Aetna filed its complaint in state court for possession of various items of the debtor’s household furniture, which it held as collateral. The debt- or timely answered that complaint and contemporaneously filed and served a notice of intent to obtain a court order avoiding Aet-na’s lien. After waiting the 20-day notice period, during which no opposition was filed by Aetna, Thompson submitted an order. The order was returned by the court clerk because the debtor’s case had been closed on November 5, 1985. On January 30, 1986, this motion to reopen was filed. ISSUE Did Aetna’s state" }, { "docid": "15409711", "title": "", "text": "HARRISON L. WINTER, Chief Judge: The debtors in this bankruptcy proceeding erroneously listed a debt owed Landmark Finance Company (Landmark) as unsecured when it was in fact secured. The nature of the security was such that, under state law, it could have been avoided. After the case was closed following the debtors’ discharge, Landmark began proceedings to foreclose on its security, and the debtors then sought to reopen their ease so as to file a lien avoidance action. From an order of the district court affirming the bankruptcy court’s denial of their motion, they appeal. We affirm. I. The voluntary petition in bankruptcy under Chapter 7 was filed by Harold J. Hawkins and Eugenia B. Hawkins, both residents of South Carolina, on June 7, 1981. The petition claimed the federal exemption for their furniture, and it listed Landmark as an unsecured creditor to which they owed $3,246.58. In fact, Landmark had a nonpossessory, nonpurchase-money lien on the furniture. Landmark had notice of the erroneous listing, but it voiced no correction. During the pendency of the bankruptcy proceedings, the Hawkins filed no proceeding under 11 U.S.C. § 522(f)(2)(A), which authorizes a debtor to avoid a lien, to the extent that the lien impairs an exemption to which the debtor is entitled, if the lien is a nonpossessory, nonpurchase-money security interest in household furnishings. It is unquestioned that the Hawkins might have avoided Landmark’s lien, based upon the provisions of S.C.Code Ann. § 15-41-200 (1982 Supp.). On September 8, 1981, the debtors were discharged and the estate closed. Thereafter Landmark instituted a “claim and delivery” action in a South Carolina state court, the purpose of which was to enforce its lien on the Hawkins’ furniture. The Hawkins, on May 25, 1982, moved under 11 U.S.C. § 350(b) to reopen their bankruptcy case for the purpose of instituting a lien avoidance proceeding. The bankruptcy court denied their motion, and the district court affirmed the bankruptcy court’s order. II. Our decision in this case turns largely on the meaning to be given § 350(b). The debtors contend that we should adopt a per se" }, { "docid": "15409712", "title": "", "text": "bankruptcy proceedings, the Hawkins filed no proceeding under 11 U.S.C. § 522(f)(2)(A), which authorizes a debtor to avoid a lien, to the extent that the lien impairs an exemption to which the debtor is entitled, if the lien is a nonpossessory, nonpurchase-money security interest in household furnishings. It is unquestioned that the Hawkins might have avoided Landmark’s lien, based upon the provisions of S.C.Code Ann. § 15-41-200 (1982 Supp.). On September 8, 1981, the debtors were discharged and the estate closed. Thereafter Landmark instituted a “claim and delivery” action in a South Carolina state court, the purpose of which was to enforce its lien on the Hawkins’ furniture. The Hawkins, on May 25, 1982, moved under 11 U.S.C. § 350(b) to reopen their bankruptcy case for the purpose of instituting a lien avoidance proceeding. The bankruptcy court denied their motion, and the district court affirmed the bankruptcy court’s order. II. Our decision in this case turns largely on the meaning to be given § 350(b). The debtors contend that we should adopt a per se rule that a debtor has the right in all instances to reopen a closed case to file a post-discharge lien avoidance complaint. Some courts have so held. But there is no unanimity in this regard. Other courts have held that debtors never can file post-discharge complaints. A third line of authority has taken a middle ground, holding that the right to reopen a case depends upon the circumstances of the individual case and that the decision whether to reopen is committed to the court’s discretion. We think that the discretionary view is the better one, and we adopt it as the rule in this circuit. The statute is phrased in permissive language, and we think that it would do violence to the statute either to say that a closed case must be reopened or that a closed case may never be reopened. We placed the same interpretation on former Bankruptcy Rule 515, the language of which was almost identical to that of § 350, and we see no reason to depart from it now that" }, { "docid": "18596088", "title": "", "text": "case a duty to file their § 522(f) action prior to discharge or prior to the time the debtors’ case is closed. Rather, in the case of In re Hawkins, 727 F.2d 324 (4th Cir.1984), the Fourth Circuit adopted the view that it is within the bankruptcy court’s discretion whether or not a post-discharge lien avoidance complaint should be allowed when the underlying bankruptcy case has previously been closed. The court stated that “the right to reopen a case depends upon the circumstances of the individual case and that the decision whether to reopen is committed to the court’s discretion.” Id. at 326. The court went on to hold that the incurrence of court costs and attorney’s fees by a creditor in the institution of foreclosure proceedings in state court in reliance on the debtor’s failure to reopen their case for over eight months could be the basis for a finding by the bankruptcy court that sufficient prejudice existed, in the exercise of its discretion, which would justify a decision that the bankruptcy case should not be reopened to allow the debtors to file their lien avoidance action. As stated in this Court’s previous opinion and the District Court’s opinion on appeal, the Hawkins case stands for the proposition that the bankruptcy court has considerable discretion in the reopening of a closed case post-discharge in order to allow the debtors to file a lien avoidance action. The District Court in its opinion concluded that this Court is likewise possessed with the same discretionary power in deciding whether a post-discharge lien avoidance action is allowable where the bankruptcy case has not been closed. As such, the District Court affirmed this Court’s decision to allow the debtors to avoid Boroughs’ lien pursuant to § 522(f) after a finding by this Court that the objecting creditor “had demonstrated no hardship or inequitable conduct” by the debtors which would eonsti-tute sufficient prejudice to justify barring their lien avoidance action. In re Webb, 49 B.R. 646, at-(Bankr.E.D.Va.1984). The crux of the defendants’ argument on remand is that notwithstanding the District Court’s affirmation of this Court’s" }, { "docid": "18568099", "title": "", "text": "was not laches, nor was it unreasonable and, therefore, declined to condition the debtors’ right to file their lien avoidance action on payment of the creditor’s legal costs. This Court is bound by Yazzie and, therefore, in the absence of prejudicial delay, must reopen a closed case to permit a debtor to file a § 522(f) lien avoidance action. Yazzie, supra, at 576. Demonstrating “prejudicial delay” is the burden of the creditor, and is determined by reference to the equitable doctrine of laches. Since laches depends on the facts and circumstances of each case, equity does not arbitrarily limit the time within which the debtor may exercise his § 522(f) lien avoidance right. See, Matter of Swanson, 13 B.R. 851, 854 (Bankr.D.Idaho 1981). In the instant case, the debtor is not “guilty” of laches. The primary reason Ricks did not avoid Aetna’s alleged lien during the pendency of his case is because he did not know the lien existed. Ricks’ schedule of liabilities lists no secured creditors. Aetna was scheduled as an unsecured creditor and knew, or should have known, of this creditor classification on June 4,1985, when debtor’s counsel provided Aetna with the filing date and case number. Aetna made no attempt to clarify the character of its debt until after the debtor was discharged. Ricks timely claimed his household furnishings exempt and that exemption was allowed by the trustee. His delay in filing a post-discharge lien avoidance action could not have prejudiced Aetna. As observed in the Matter of Swanson: The position of the creditor who holds a nonpossessory, nonpurchase-money interest which can be avoided as against exempt property is not materially affected by a debtor’s delay in asserting his right to avoid. In a typical case and in the case at bar, the creditor knows all of the material facts immediately after a debtor files a petition for relief in the Bankruptcy Court. Such creditor knows what types of property can be claimed as exempt under the local law. He knows the nature of his lien and the property upon which it is impressed. With this information" }, { "docid": "3247414", "title": "", "text": "likely determine the issue of whether Mr. Sikes was effected by the Debtor’s Chapter 7 discharge in a timely manner, a procedure that would benefit both parties. At such a hearing, this Court could consider more complete information presented by the parties including any defenses asserted by Mr. Sikes such as res judicata, collateral estoppel and latches. This Court is inclined at this time to condition or limit the reopening of the case to allow only the institution of an adversary proceeding by the Debtor to determine dis-chargeability pursuant to § 523(a)(3). Based only upon the summary assertion of notice indicated by the Debtor’s affidavit, Mr. Sikes should not be presently subject to an action for violation of the discharge injunction. CONCLUSION Pursuant to the Hawkins decision, the determination to reopen a case is left to the sound discretion of the Court and depends upon the circumstances of the case, including the prejudice to the creditor. Our decision in this case turns largely on the meaning to be given § 350(b). The debtors contend that we should adopt a per se rule that a debtor has the right in all instances to reopen a closed case to file a post-discharge lien avoidance complaint. Some courts have so held. But there is no unanimity in this regard. Other courts have held that debtors never can file post-discharge complaints. A third line of authority has taken a middle ground, holding that the right to reopen a case depends upon the circumstances of the individual case and that the decision whether to reopen is committed to the court’s discretion. We think that the discretionary view is the better one, and we adopt it as the rule in this circuit. Hawkins v. Landmark Finance Company, 727 F.2d 324 (4th Cir.1984). For the reasons stated, the Court will deny the Debtor’s Motion to Reopen filed September 3, 1996 as it relates to the Strakowskis, Goodenoughs and Browns. However, the Debtor’s Motion to Reopen filed September 3, 1996 as it relates to Mr. Sikes is granted for the limited effect of allowing the Debtor to file" }, { "docid": "18568096", "title": "", "text": "not to reopen a closed case. 727 F.2d at 326. The Hawkins debtors did not seek to reopen their case for over eight months and, then, not until the creditor had instituted foreclosure proceedings. The court found this delay prejudiced the creditor because it had commenced a state court action and incurred court costs and attorneys fees in reliance on the fact that the debtors did not challenge the “validity or viability” of the lien before their case was closed. Id. at 327. The court concluded that the bankruptcy court acted within its discretion in denying the debtors’ motion to reopen. In Noble v. Yingling, 37 B.R. 647 (D.Ct.Del.1984), a Delaware district court permitted the debtors to file a post-discharge action to avoid a creditor’s lien under § 522(f). The Noble court followed the “emerging rule” that a post-discharge lien avoidance action should be time-barred only if the debtor’s delay causes sufficient prejudice to the creditor to warrant barring the lien avoidance action. 37 B.R. at 650. In Noble, the court found that the creditor’s costs in executing its judgment lien were directly attributable to the debtor’s failure to bring a pre-discharge lien avoidance action. Noble, supra, at 651. The Noble court found that incurring these costs did not sufficiently prejudice the creditor so as to justify barring the debtors’ statutorily conferred lien avoidance right, concluding: The equitable solution in cases of this type is to condition the debtor’s right to file his lien avoidance action on his payment to the creditor of any extra costs attributable to that delay. Id. [emphasis added]. See also In re Barner, 20 B.R. 428, 430 (Bankr.E.D.Wisc.1982); In re Montney, 17 B.R. 353, 358 (Bankr.E.D. Mich.1982); In re Bennett, 13 B.R. 643, 644 (Bankr.W.D.Mich.1981). However, the mere expenditure of attorneys fees and costs by the creditor post-discharge is not, in all instances, reason to require a debtor to pay those fees as a condition of reopening his case to permit the § 522(f) action to proceed. In In re Webb, 48 B.R. 454 (Bankr.E.D.Va.1985), a creditor incurred legal costs in excess of $12,000 in" }, { "docid": "18568094", "title": "", "text": "received the Chapter 7 bankruptcy notice. Thompson provided the filing date and case number. On August 19,1985, the debtor’s discharge was entered. On October 24, 1985, Thompson received a demand letter from Aetna. On October 30, 1985, Thompson wrote Aetna’s counsel, Mr. Jerry Suppa, requesting copies of the note, security agreement, financing statement and list of collateral. On November 4, 1985, Mr. Suppa forwarded copies of all the documents except the list of collateral. On November 18, 1985, Aetna filed its complaint in state court for possession of various items of the debtor’s household furniture, which it held as collateral. The debt- or timely answered that complaint and contemporaneously filed and served a notice of intent to obtain a court order avoiding Aet-na’s lien. After waiting the 20-day notice period, during which no opposition was filed by Aetna, Thompson submitted an order. The order was returned by the court clerk because the debtor’s case had been closed on November 5, 1985. On January 30, 1986, this motion to reopen was filed. ISSUE Did Aetna’s state court lawsuit costs, expended to recover its collateral after Ricks received his discharge, so prejudice Aetna that the Court should decline to reopen this case to permit lien avoidance? DISCUSSION This Court has previously addressed the broader legal question of whether a bankruptcy court should reopen a closed case in order to permit a debtor to file a motion to avoid a lien under 11 U.S.C. § 522(f). See, In re Yazzie, 24 B.R. 576 (BAP 9th Cir.1982). Yazzie held that, absent prejudicial delay, a debtor may bring a lien avoidance motion at any time. Yazzie rejected the holding of In re Adkins, 7 B.R. 325 (Bankr.S.D.Cal.1980), which required a debtor file his lien avoidance motion before the discharge hearing or forever forfeit the right to do so. 7 B.R. at 327. Hawkins v. Landmark Finance Co., 727 F.2d 324 (4th Cir.1984), the only circuit level decision to address the question of reopening a closed case to permit lien avoidance, also rejected Adkins. Hawkins held that bankruptcy courts have the discretion to decide whether or" }, { "docid": "18588106", "title": "", "text": "54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934) (citations omitted). This same “honest but unfortunate debtor” is thus provided with “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Grogan v. Garner, 498 U.S. 279, 286, 287, 111 S.Ct. 654, 659, 659, 112 L.Ed.2d 755, 764, 765 (1991); Perez v. Campbell, 402 U.S. 637, 648, 91 S.Ct. 1704, 1710, 29 L.Ed.2d 233, 241 (1971); Local Loan Co. v. Hunt, 292 U.S., at 244, 54 S.Ct. at 699; Johnston v. Johnston, 63 F.2d, at 26; Royal Indemnity Co. v. Cooper, 26 F.2d 585, 587 (4th Cir.1928). The discharge order issued herein applies to all of the Debtor’s pre-petition debts, and acts to generally discharge a debtor from all personal liability on those debts. See 11 U.S.C. §§ 524(a) and 727(b). The Debtor moved to reopen his case after the Creditor initiated the post-discharge actions against him and allegedly threatened him with criminal action. A debtor is generally permitted the right to reopen a case, to “accord relief to the debtor, or for cause.” See 11 U.S.C. § 350 and Bankr.Rule 5010. No other limitation exists upon the right of a debtor to reopen his or her case, and it is generally within the Court’s discretion to order a case reopened to allow a debtor to move for avoidance of a lien on exempt property. Hawkins v. Landmark Finance Co., 727 F.2d 324, 327 (4th Cir.1984) (Widener, J., dissenting) (dissenting from decision only, but agreeing with opinion holding that such decisions rest with discretion of bankruptcy court). This Court finds no prejudice to the Creditor herein by allowing the case to be reopened in order to properly consider the lien avoidance motion, 3 Collier 11 522.29[1], at 522-96, -97, as well as the propriety of the Creditor’s actions. In considering the main issue herein—whether the Creditor’s post-discharge actions, taken with regard to exempt property which secured the underlying debt, violated the permanent injunction provisions of § 524(a)—the Court notes that the same rule of liberally construing a federal remedial statute" }, { "docid": "18568095", "title": "", "text": "court lawsuit costs, expended to recover its collateral after Ricks received his discharge, so prejudice Aetna that the Court should decline to reopen this case to permit lien avoidance? DISCUSSION This Court has previously addressed the broader legal question of whether a bankruptcy court should reopen a closed case in order to permit a debtor to file a motion to avoid a lien under 11 U.S.C. § 522(f). See, In re Yazzie, 24 B.R. 576 (BAP 9th Cir.1982). Yazzie held that, absent prejudicial delay, a debtor may bring a lien avoidance motion at any time. Yazzie rejected the holding of In re Adkins, 7 B.R. 325 (Bankr.S.D.Cal.1980), which required a debtor file his lien avoidance motion before the discharge hearing or forever forfeit the right to do so. 7 B.R. at 327. Hawkins v. Landmark Finance Co., 727 F.2d 324 (4th Cir.1984), the only circuit level decision to address the question of reopening a closed case to permit lien avoidance, also rejected Adkins. Hawkins held that bankruptcy courts have the discretion to decide whether or not to reopen a closed case. 727 F.2d at 326. The Hawkins debtors did not seek to reopen their case for over eight months and, then, not until the creditor had instituted foreclosure proceedings. The court found this delay prejudiced the creditor because it had commenced a state court action and incurred court costs and attorneys fees in reliance on the fact that the debtors did not challenge the “validity or viability” of the lien before their case was closed. Id. at 327. The court concluded that the bankruptcy court acted within its discretion in denying the debtors’ motion to reopen. In Noble v. Yingling, 37 B.R. 647 (D.Ct.Del.1984), a Delaware district court permitted the debtors to file a post-discharge action to avoid a creditor’s lien under § 522(f). The Noble court followed the “emerging rule” that a post-discharge lien avoidance action should be time-barred only if the debtor’s delay causes sufficient prejudice to the creditor to warrant barring the lien avoidance action. 37 B.R. at 650. In Noble, the court found that the creditor’s" }, { "docid": "18596087", "title": "", "text": "remand has been filed by any party to this proceeding, and without deciding the propriety of the remand, this Court will address the merits of the defendants/appellants’ contention. The issue before the Court is one of first impression in this district and in the Fourth Circuit. The question presented is whether or not this Court has the discretion to condition the debtors’ right to file a post-discharge lien avoidance action on the payment to the creditor of costs and attorney’s fees attributable to the enforcement of a judicial lien against property of the debtor when the debtor has delayed filing a lien avoidance action pursuant to 11 U.S.C. § 522(f) until after discharge; and if the Court has such discretion, whether it should be applied to this case to reimburse Boroughs for the costs and attorneys fees it incurred as a result of the delay. In this regard, this Court held in its prior Memorandum Opinion dated April 17, 1984 that Congress has set no time limitation which would impose upon the debtors in this case a duty to file their § 522(f) action prior to discharge or prior to the time the debtors’ case is closed. Rather, in the case of In re Hawkins, 727 F.2d 324 (4th Cir.1984), the Fourth Circuit adopted the view that it is within the bankruptcy court’s discretion whether or not a post-discharge lien avoidance complaint should be allowed when the underlying bankruptcy case has previously been closed. The court stated that “the right to reopen a case depends upon the circumstances of the individual case and that the decision whether to reopen is committed to the court’s discretion.” Id. at 326. The court went on to hold that the incurrence of court costs and attorney’s fees by a creditor in the institution of foreclosure proceedings in state court in reliance on the debtor’s failure to reopen their case for over eight months could be the basis for a finding by the bankruptcy court that sufficient prejudice existed, in the exercise of its discretion, which would justify a decision that the bankruptcy case should" }, { "docid": "8452552", "title": "", "text": "to the district court. On May 19, 1991, GDP subordinated its deed completely to CNB in settlement of the state court action. On August 23, 1991, the district court affirmed the bankruptcy court’s decision to deny avoidance. The CNB lien prevailed after seven years of resistance by the Chabots. We now must review that determination. II. JURISDICTION AND STANDARDS OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. § 158(a). This court has jurisdiction based on 28 U.S.C. § 158(d). We review a trial court’s decision to reopen a bankruptcy case to allow lien avoidance pursuant to 11 U.S.C. § 522(f) for abuse of discretion. In re Ricks, 89 B.R. 73, 75 (Bankr.9th Cir.1988). We review a bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. In re Professional Inv. Properties of Am., 955 F.2d 623, 626 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 63, 121 L.Ed.2d 31 (1992). III. DISCUSSION A.Issues Presented on Appeal The overarching question in this case is whether the Chabots’ $45,000 homestead exemption, which will not be reduced by CNB’s partially unsecured lien, should be considered “impaired” under 11 U.S.C. § 522(f). To reach this issue, this panel must first determine whether the bankruptcy case should have been reopened. If the bankruptcy and district courts were correct to hear the case, then we must determine whether, under California law, CNB’s lien attached to the Chabots’ residence. If there is a valid, attached lien, then this court must determine whether it impairs the exemption and therefore must be avoided under section 522(f). B. Was It an Error to Reopen the Bankruptcy? CNB complains that the case should not have been reopened. A. refusal would have cut off the Chabots’ attack. The decision to reopen a bankruptcy case to decide a lien avoidance issue is reviewed for abuse of discretion. In re Ricks, 89 B.R. at 75. Absent a prejudicial delay, an avoidance action may be brought at any time. In re Yazzie, 24 B.R. 576, 577-78 (Bankr.9th Cir.1982). Both the bankruptcy court and the district court" }, { "docid": "18596089", "title": "", "text": "not be reopened to allow the debtors to file their lien avoidance action. As stated in this Court’s previous opinion and the District Court’s opinion on appeal, the Hawkins case stands for the proposition that the bankruptcy court has considerable discretion in the reopening of a closed case post-discharge in order to allow the debtors to file a lien avoidance action. The District Court in its opinion concluded that this Court is likewise possessed with the same discretionary power in deciding whether a post-discharge lien avoidance action is allowable where the bankruptcy case has not been closed. As such, the District Court affirmed this Court’s decision to allow the debtors to avoid Boroughs’ lien pursuant to § 522(f) after a finding by this Court that the objecting creditor “had demonstrated no hardship or inequitable conduct” by the debtors which would eonsti-tute sufficient prejudice to justify barring their lien avoidance action. In re Webb, 49 B.R. 646, at-(Bankr.E.D.Va.1984). The crux of the defendants’ argument on remand is that notwithstanding the District Court’s affirmation of this Court’s decision that Boroughs had not demonstrated sufficient prejudice under Hawkins to cause this Court in the exercise of its discretion to conclude that the lien avoidance action by the debtors should be barred, nevertheless this Court should exercise its discretion and condition the debtors’ right to file their avoidance action on the payment to Boroughs of its costs and attorney’s fees which it alleges were incurred solely as a result of the debtors’ delay in filing. This argument is based on a decision of the District Court in Delaware, Noble v. Yingling, 37 B.R. 647 (D.Del.1984), which held that a creditor who had incurred $15 in filing fees and $150 in attorney’s fees was entitled to the payment of said sums as a condition of the court granting the relief prayed for by the debtors in their lien avoidance action. Id. at 651. Consistent with Hawkins and a clear reading of the terms of § 522(f), the District Court in Noble pointed out that a debtor may exercise its rights under § 522(f) post-discharge if" }, { "docid": "18489027", "title": "", "text": "impaired the Debtors’ homestead equity, the liens must be totally avoided. In re Galvan, 110 B.R. 446 (9th Cir.BAP 1990). Since the avoidance of SHP’s liens relates back to the petition date, any events subsequent to the filing of the petition could not revitalize them. No time limit is prescribed in the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure for a debtor to bring a motion under 11 U.S.C. § 522(f)(1) to avoid a judicial lien that impairs an exemption. A debtor’s delay in filing an avoidance motion is not in and of itself prejudicial, and absent actual prejudice, the motion can be brought at any time. In re Yazzie, 24 B.R. 576 (9th Cir.BAP 1982). However, prejudice can be a matter of degrees. Where, as in this case, the creditor reasonably and in good faith incurred fees and expenses in responding to the unusual request of the debtors, it should be reimbursed. Noble v. Yingling, 37 B.R. 647, 651 (D.Del.1984). Consequently, the court will exercise its equitable powers and require the payment of $1,000 to SHP from the sales proceeds. The foregoing shall constitute the court’s findings of fact and conclusions of law. An appropriate order will issue. ORDER GRANTING DEBTORS’ MOTION TO REOPEN CASE AND AVOID JUDICIAL LIEN The court having issued its Memorandum Decision, and good cause appearing; IT IS HEREBY ORDERED that the judicial liens in favor of Summer Hills Plaza, which are evidenced by the abstracts of judgment recorded with the Sacramento County Recorder on January 13, 1988, documents #008263 and 008264, are avoided in respect to the proceeds from the sale of the real property more commonly known as 6025 McMahon Drive, Sacramento, California, and shall not attach to any property subsequently acquired by the above-named Debtors. IT IS FURTHER ORDERED that Debtors’ counsel shall pay the sum of $1,000.00 to Summer Hills Plaza from the sales proceeds held in his trust account as a condition precedent to the avoidance of the Summer Hills Plaza’s judicial liens. . Each abstract was in the amount of $45,-334.36. It is not clear why two" } ]

[ { "docid": "23386416", "title": "", "text": "F.2d 1259, 1263 (7th Cir.1987); Babrocky, 773 F.2d at 861; Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir.1985). If such contradictions were permitted, we reasoned, “the very purpose of the summary judgment motion — to weed out unfounded claims, specious denials, and sham defenses — would be severely undercut.” Babrocky, 778 F.2d at 861; see Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364 (8th Cir.1983). Prior to Adelman-Tremblay, the rule against submitting affidavits that contradict prior depositions had been applied only to parties. See, e.g., Diliberti, 817 F.2d at 1263; Babrocky, 773 F.2d at 861; Miller, 766 F.2d at 1104. Concluding that the same policy considerations would be served, we extended this rule beyond the parties to include statements made by witnesses that contradict their prior deposition testimony. Adelman-Tremblay, 859 F.2d at 521; see also Garnac Grain Co. v. Blackley, 932 F.2d 1563 (8th Cir.1991). The cases to which we have applied this rule, however, have all involved prior statements that were made under oath. See, e.g., Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995) (deposition); Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993) (same); Essick v. Yellow Freight Systems, Inc., 965 F.2d 334, 335-36 (7th Cir. 1992) (sworn testimony before state agency); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 237 (7th Cir.1991) (deposition); Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir.1988) (deposition and sworn statement filed under local rule); Adelman-Tremblay, 859 F.2d at 520 (deposition); Diliberti, 817 F.2d at 1263 (“[Ijt is well established that a party cannot create a genuine issue of material fact by submitting an affidavit containing eonclusory allegations which contradict plain admissions in prior deposition or otherwise sworn testimony.”) (deposition); Babrocky, 773 F.2d at 861 (same); Miller, 766 F.2d at 1104 (same); see also Donohoe, 982 F.2d at 1136 n. 4 (answers to interrogatories). If the district court was correct in disregarding the Shepards’ deposition testimony, therefore, it was because the testimony conflicted with their prior statements given under oath and not because it conflicted with statements they had made to" } ]

[ { "docid": "23392617", "title": "", "text": "courts have determined that the rule permits changes of substance only to the extent that the proposed alteration is consistent with the deponent’s testimony. The champion of this view is Greenway v. International Paper Co., in which the court explained: The purpose of Rule 30(e) is obvious. Should the reporter make a substantive error, i.e., he reported “yes” but I said “no,” or a formal error, i.e., he reported the name to be “Lawrence Smith” but the proper name is “Laurence Smith,” then corrections by the deponent would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination. 144 F.R.D. 322, 325 (W.D.La.1992). We are called upon to interpret Rule 30(e) in the summary judgment context. We believe that a flexible approach — consistent with our prior analogous jurisprudence — is appropriate. As a general proposition, a party may not gen erate from whole cloth a genuine issue of material fact (or eliminate the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction. See Hambleton Bros., 397 F.3d at 1225 (“While the language of [Rule] 30(e) permits corrections ‘in form or substance,’ this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.” (citing Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488-89 (9th Cir.1991))); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002) (finding summary judgment inappropriate and rejecting defense counsel’s attempt to eliminate genuine issues of material fact through changes in a deposition transcript, admonishing “[w]e do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony.”); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000) (affirming the grant of" }, { "docid": "22872760", "title": "", "text": "Recent decisions by several courts of appeals, including our own, affirm this interpretation of Rule 30(e). The Tenth Circuit has said, “We do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony.” Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002); accord Burns v. Board of County Com’rs of Jackson County, 330 F.3d 1275, 1281-82 (10th Cir.2003) (analogizing to rule that affidavit may not be used to contradict prior sworn testimony). Similarly, the Seventh Circuit has held that “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’ ” Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000) (calling such an errata sheet a “foolish tactic”). We too have affirmed a district court’s decision to disregard an errata sheet that attempted to make material changes to a deposition on the grounds that the deponent was “confused” at the time of the deposition. Reynolds v. IBM, Corp., 320 F.Supp.2d 1290, 1301 (M.D.Fla.2004), aff'd 125 Fed.Appx. 982 (11th Cir.2004) (approving district court’s decision to disregard errata changes where deponent did not exhibit any obvious confusion during deposition). Similarly, Norelus’s initial sworn answers of “yes” or “no” do not reflect any confusion that should have been “clarified” by the substitution of the exact opposite answer, along with great detail. The Amlongs contend that the changes made by their Errata Sheet did not materially alter the substance of Norelus’s answers. Karen Amlong testified that the changes were really only “immaterial or elaborations,” and not “really significant.” The district court’s careful review of the changes, attached hereto as Appendix A, led it to find otherwise. For example, Norelus’s deposition answer “no” to the question whether she was ever forced to have anal sex, was changed in the Errata Sheet to “yes,” as alleged in her complaint. Her deposition testimony regarding an assault by Jawaid was almost completely changed to" }, { "docid": "9857278", "title": "", "text": "testified to so far?” Amadio responds to the contradictions in his testimony by arguing that Ford should have asked more specific questions at his deposition. It is, however, difficult to imagine how Ford could have been more specific. At the very least, being told that one’s ailment is contagious and that one is no longer welcome around the plant certainly seems to qualify as a “difficult conversation.” Amadio should have mentioned it as such during his deposition, especially given his detailed recollection of other conversations with Lafayette. For example, Amadio was asked the following questions during his deposition: Then I believe you said that Lou Lafayette gave you a hard time and said things along the lines of you need to show up to work; is that a fair characterization of your testimony? [affirmative response omitted] ... Can you tell me as specifically as you can exactly what he said in that regard? In response, Anadio remembered that sometime between January 27, 1995 and February 3, 1995, Lafayette told him “to get your ass back to work or you’re going to get your ass fired.” It is by now well-settled that a party may not attempt to survive a motion for summary judgment by manufacturing a factual dispute through the submission of an affidavit that contradicts prior deposition testimony. Consequently, “[w]here a deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.” Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995) (citing Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993)). As already noted, Amadio provided no acceptable explanation for his failure to describe Lafayette’s alleged statements during his deposition. As such, because Amadio’s affidavit directly contradicts his prior deposition testimony, the affidavit is inadmissible, and we will only consider Amadio’s deposition testimony. See Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir.1999); Slowiak," }, { "docid": "5461011", "title": "", "text": "which ended in April of the following year, Conway sent several open letters to the local’s membership. These letters explained the reasons for the trusteeship. They did not mention Sullivan. The defendants make one very poor argument: that we must assume that Conway did not say “Jim Sullivan is a very poor lawyer,” but rather “I hear that Jim Sullivan is not a good lawyer.” The basis for the first version was an affidavit by Pierce. The affidavit had been drafted by Sullivan, but it was signed by Pierce and so was his sworn statement. Later he was deposed and it was then that he gave the other version. The defendants argue that when there is an inconsistency between an affidavit and a deposition, the latter prevails. There is no such rule. The rule of which this is a garbled version is that a deponent is not allowed to change what he said in his deposition by giving an affidavit later, unless he has a good reason for doing so (for example, that newly discovered evidence reveals that the statement in the deposition was erroneous). E.g., Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 406 n. 4 (7th Cir.1998); Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168-72 (7th Cir.1996); Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir.1997); Durtsche v. American Colloid Co., 958 F.2d 1007, 1010 n. 2 (10th Cir.1992); Pyramid Securities Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir.1991); Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.1986). Affidavits are normally as here written by lawyers, and if such documents were allowed to be used to “correct” unguarded statements that had been made in the more spontaneous setting of oral questioning, the value of pretrial discovery as a tool for eliciting truth and heading off trials based on fabrications would be seriously impaired. But the sequence is crucial. Recollecting in tranquility the admissions blurted out under the pressure of a hostile interrogation, the witness and his lawyer can easily cobble together a plausible denial. But having given his sworn" }, { "docid": "5886024", "title": "", "text": "on the 6th.” (Reynolds Dep. at 152). This testimony is consistent with that of Ms. Pierce, who testified that she had already set up the March 6 meeting when she received Mr. Reynolds’ February 27 email. (Pierce Dep. at 120). Thus, Mr. Reynolds’ own deposition testimony destroys the causal link between Mr. Reynolds’ request for medical leave and IBM’s decision to place Mr. Reynolds on the PIP. On September 3, 2003, however, Mr. Reynolds filed an errata sheet which changed “two to three weeks” to “a little before the meeting,” and indicated he could not recall if Ms. Pierce called him “a week or a few days before” the March 6, 2001 meeting. (Doe. 80). Although the Eleventh Circuit has not spoken, the Seventh and Tenth Circuits have dealt with situations where a deponent filed an errata sheet that materially changed original deposition testimony. See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000); Burns v. Board of County Commissioners of Jackson County, 330 F.3d 1275, 1281-82 (10th Cir.2003); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002). Both courts analogized the situation to the rule that an affidavit may not be used to contradict a witness’s prior sworn testimony. See Thorn, 207 F.3d at 389; Burns, 330 F.3d at 1281-82. The Tenth Circuit reasoned that Federal Rule of Civil Procedure 30(e), which allows a deponent to file an errata sheet: ... cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination. Burns, 330 F.3d at 1282; Garcia, 299 F.3d at 1242 n. 5 (quoting Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D.La.1992)). Moreover, the Seventh Circuit concluded “that a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’ ” Thorn," }, { "docid": "15136193", "title": "", "text": "176 (7th Cir.1994), and, in turn, defeat a defendant’s motion for summary judgment. See Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 379 (7th Cir.1995); Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995). “Parties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions.” Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985). Thus, when a conflict arises between a plaintiffs own sworn deposition and his sworn affidavit, the deposition testimony overrides statements made in the affidavit. As we have noted, “[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment.” Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993). When a “deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the state ment in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.” Russell, 51 F.3d at 67-68 (citing Slowiak, 987 F.2d at 1297 (additional citations omitted)). In this case, Piscione attempts to create genuine issues of material fact by referencing statements in his affidavit, which he filed after Ernst & Young moved for summary judgment. These statements, however, contradict those he made earlier during his deposition. There is no indication that the statements in the deposition resulted from mistake, confusion, or lapse of memory. Thus, in those instances when Piscione’s affidavit conflicts with his deposition testimony, the deposition testimony controls. B. The Fair Labor Standards Act Under the FLSA, 29 U.S.C. § 201 et seq., employers must pay their employees at least one and a half times their regular wages for the number of hours worked that exceed forty in a given week. 29 U.S.C. § 207(a)(1). However, employees “employed in a bona fide executive, administrative, or professional capacity” are exempt from this requirement. 29 U.S.C. § 213(a)(1). Ernst & Young alleges that Piscione comes within either the administrative or professional exemption. Congress delegated to the Secretary" }, { "docid": "10249860", "title": "", "text": "any attempt to explain or reconcile the inconsistency between his affidavit and prior deposition testimony, that he invariably told prospective manufacturers and business partners “that the ideas being discussed were to be kept between us.” (Moore Supp.Aff. ¶ 2, Pis.''Appendix of Exhibits, Ex. H.) He goes on to state that no one, including Gilman, ever objected to keeping the discussions confidential. {Id. ¶ 3.) This vague affidavit, which may refer to nothing more than the \"between you and I statement” discounted above, says too little and comes too late. See, e.g., Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4 (1st Cir.1994) (stating \"[wjhen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed”); McGuire v. Acufex Microsurgical, Inc., 868 F.Supp. 388, 396 (D.Mass.1994) (declaring that a party who attempts to create an issue of fact by filing an affidavit that is inconsistent with deposition testimony has a duty to provide a satisfactory explanation for the discrepancy); see also Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995) (asserting that a subsequent affidavit should be disregarded when it is in conflict with previous deposition testimony unless the party can explain the discrepancy); Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993) (concluding that without a satisfactory explanation, a subsequent self-serving affidavit which contradicts deposition testimony cannot create a genuine issue' of material fact), Trans-Orient Marine Corp. v. Star Trading and Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) (stating that a party cannot create a genuine issue of material fact by submitting an affidavit contradicting his own sworn testimony). Cf. Fleet Nat’l Bank v.H & D Entertainment, Inc., 96 F.3d 532, 539 (1st Cir.1996) (discounting the value of an affidavit that contains only a general and conclusory assertion similar to Coach Moore's). . Defendants estimate that they incurred tooling and construction costs of approximately $42,000 in constructing a one-piece ball. (FS V 72). . I" }, { "docid": "23451803", "title": "", "text": "one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.”); but see Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.1997) (“[T]he language of [Rule 30(e)] places no limitations on the type of changes that may be made, nor does [Rule 30(e)] require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes — even if those reasons are unconvincing.” (quotation marks and alterations omitted)); Reilly v. TXU Corp., 230 F.R.D. 486, 487-90 (N.D.Tex.2005) (reviewing the various approaches for interpreting the allowable scope of Rule 30(e) changes and ultimately adopting a broad interpretation “consistent with the plain language” of Rule 30(e), allowing any changes, “in form or substance” under Rule 30(e)); cf. EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253, 268 (3d Cir.2010) (“We therefore hold that when reviewing a motion for summary judgment, a district court does not abuse its discretion under Rule 30(e) when it refuses to consider proposed substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification. At the same time, we emphasize that courts may, in their discretion, choose to allow contradictory changes (and implement the remedial measures discussed above) as the circumstances may warrant.”). One circuit has gone so far as to call the creation of an errata sheet making substantive changes a “foolish tac tic.” Thorn, 207 F.3d at 388-89. In the present case, the magistrate judge who conducted the evidentiary hearings of the defendants’ motion for sanctions found that the procedures used to prepare the errata sheet, “i.e., translating through plaintiffs brother and possible explanations of questions by plaintiffs counsel” were also improper. As the magistrate judge found and no one (with the possible exception of the dissenting judge on this panel) seriously contests, the improper submission of the massive errata document rendered the eight days spent" }, { "docid": "23392619", "title": "", "text": "summary judgment, and concluding that “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not’ ”). Where proposed changes squarely contradict earlier testimony materially bearing on the case, preserving the original testimony or reopening the deposition may often prove to be insufficient remedies. Moreover, requiring trial judges in all cases to permit contradictory alterations could risk the defeat of summary judgment in a large swath of cases for which a Rule 56 disposition otherwise would be appropriate. Preservation of the original testimony for impeachment at trial serves as cold comfort to the party that should have prevailed at summary judgment. And reopening the deposition before disposition might not be a sufficient remedy, for the deponent who has reviewed his original testimony and settled on an opposite answer may prove unimpeachable. We therefore hold that when reviewing a motion for summary judgment, a district court does not abuse its discretion under Rule 30(e) when it refuses to consider proposed substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification. At the same time, we emphasize that courts may, in their discretion, choose to allow contradictory changes (and implement the remedial measures discussed above) as the circumstances may warrant. Our “sham affidavit” cases — which permit courts to ignore affidavits that contradict earlier deposition testimony without adequate explanation — provide useful guidance. See Hambleton Bros., 397 F.3d at 1225 (applying sham affidavit cases in analyzing Rule 30(e) issue); Burns v. Bd. of County Comm’rs, 330 F.3d 1275, 1281-82 (10th Cir.2003) (same); Thorn, 207 F.3d at 389 (same). In Martin v. Merrell Dow Pharmaceuticals, Inc., we affirmed a district court’s refusal to consider a “squarely contradictory]” affidavit filed after a summary judgment motion had been filed. 851 F.2d 703, 705-06 (3d Cir.1988). We explained: We recognize that there are situations in which sworn testimony can quite properly be corrected by a subsequent affidavit. Where the witness was confused at the earlier deposition or for" }, { "docid": "22872759", "title": "", "text": "States District Court for the District of Columbia noted that: Defendant ... argues that Rule 30(e) allows her to make any substantive change she so desires. While older cases appear to support this position, later cases have often limited this blank check; perhaps because of the potential for abuse. SEC v. Parkersburg Wireless Ltd. Liability Co., 156 F.R.D. 529 (D.D.C.1994). The United States District Court for the Middle District of North Carolina, in 1986, sanctioned the plaintiffs attempt to “correct” her deposition “with a 7-page correction list with over 100 corrections in a 260-page deposition, changing ‘yes’ to ‘no’ and vice versa.” Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D.N.C.1986). The court inferred bad faith from the “manner and number of changes” the errata sheet proposed, characterizing the conduct as “harassing” and causing “unnecessary delay and costs.” Id. In Rios v. Bigler, 847 F.Supp. 1538, 1546—47 (D.Kan.1994), the district court, citing Greenway, held that it would consider only those errata sheet changes that clarified the deposition, and not those that materially altered it. Recent decisions by several courts of appeals, including our own, affirm this interpretation of Rule 30(e). The Tenth Circuit has said, “We do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony.” Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002); accord Burns v. Board of County Com’rs of Jackson County, 330 F.3d 1275, 1281-82 (10th Cir.2003) (analogizing to rule that affidavit may not be used to contradict prior sworn testimony). Similarly, the Seventh Circuit has held that “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’ ” Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000) (calling such an errata sheet a “foolish tactic”). We too have affirmed a district court’s decision to disregard an errata sheet that attempted to make material changes to a deposition on" }, { "docid": "23392647", "title": "", "text": "Names, 302 F.3d 214, 242 (4th Cir.2002))). . For purposes of this opinion, we will refer to the “transcript or recording” as the “deposition transcript.” . Rule 30(f)(1) governs the certification and delivery of the deposition transcript by the court reporter. Relevant here, the rule requires the court reporter to certify in writing that the deponent was duly sworn and that the transcript accurately depicts the deponent's testimony. Fed.R.Civ.P. 30(f)(1). Further, the court reporter's certification must accompany the deposition transcript, and the transcript must be delivered promptly to the attorney who arranged for the transcript’s production. Id. . Rule 30 was amended in 2007 as part of the general restyling of the Federal Rules of Civil Procedure. “These changes [we]re intended to be stylistic only.” Fed.R.Civ.P. 30 advisory committee's note. Accordingly, the pre-amendment cases cited herein apply with equal force to the amended rule. . Note, however, the phrasing of the rule — it provides that a party or deponent “must be allowed 30 days” to submit errata (the rule formerly stated that the party or deponent “shall have 30 days”). Fed.R.Civ.P. 30(e)(1). The natural language of the rule, then, does not preclude courts from allowing more time upon a prior request or forgiving minor .untimeliness after the fact. Instead, the rule grants courts discretion to do so under appropriate circumstances. While courts retain the authority to enforce the amendment window strictly, we leave the matter to their sound discretion to determine if and when extension of the time limit is appropriate. . While a party need only provide some reason to clear Rule 30(e)'s procedural hurdle, courts — as discussed infra — may consider un satisfactory or conclusory reasons when addressing whether contradictory errata should be permitted as a substantive matter. . See, e.g., Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.1997); Reilly v. TXU Corp., 230 F.R.D. 486, 489-92 (N.D.Tex.2005); Foutz v. Town of Vinton, 211 F.R.D. 293, 295 (W.D.Va.2002); DeLoach v. Philip Morris Cos., Inc., 206 F.R.D. 568, 572-73 (M.D.N.C.2002);; Elwell v. Conair, Inc., 145 F.Supp.2d 79, 86-87 (D.Me.2001); Holland, 198 F.R.D. at" }, { "docid": "5461012", "title": "", "text": "evidence reveals that the statement in the deposition was erroneous). E.g., Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 406 n. 4 (7th Cir.1998); Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168-72 (7th Cir.1996); Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir.1997); Durtsche v. American Colloid Co., 958 F.2d 1007, 1010 n. 2 (10th Cir.1992); Pyramid Securities Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir.1991); Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.1986). Affidavits are normally as here written by lawyers, and if such documents were allowed to be used to “correct” unguarded statements that had been made in the more spontaneous setting of oral questioning, the value of pretrial discovery as a tool for eliciting truth and heading off trials based on fabrications would be seriously impaired. But the sequence is crucial. Recollecting in tranquility the admissions blurted out under the pressure of a hostile interrogation, the witness and his lawyer can easily cobble together a plausible denial. But having given his sworn affidavit, the witness who later thinks better of what he said is not entitled to have his oral retraction believed merely because it too is under oath. Pyramid, Securities Ltd. v. IB Resolution Inc., supra, 924 F.2d at 1124; see also Tippens v. Celotex Corp., supra, 805 F.2d at 954. And so we held in Bank of Illinois v. Allied Signal Safety Restraint, supra, that a witness may not wipe out his sworn testimony by contradicting it in a subsequent deposition. Darnell v. Target Stores, 16 F.3d 174 (7th Cir.1994), on which the defendants rely, is not to the contrary. The plaintiff submitted supporting affidavits afterwards repudiated by the affiants in their depositions; the repudiations so far undermined the affidavits as to deprive them of any credibility, destroying the evidentiary basis of the plaintiffs case. All this is of no importance here, since neither version of Conway’s alleged defamation of Sullivan is actionable. It is one thing to say that a lawyer is dishonest, or has falsified his credentials, or has lost every ease he" }, { "docid": "23392618", "title": "", "text": "— is appropriate. As a general proposition, a party may not gen erate from whole cloth a genuine issue of material fact (or eliminate the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction. See Hambleton Bros., 397 F.3d at 1225 (“While the language of [Rule] 30(e) permits corrections ‘in form or substance,’ this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.” (citing Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488-89 (9th Cir.1991))); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002) (finding summary judgment inappropriate and rejecting defense counsel’s attempt to eliminate genuine issues of material fact through changes in a deposition transcript, admonishing “[w]e do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony.”); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000) (affirming the grant of summary judgment, and concluding that “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not’ ”). Where proposed changes squarely contradict earlier testimony materially bearing on the case, preserving the original testimony or reopening the deposition may often prove to be insufficient remedies. Moreover, requiring trial judges in all cases to permit contradictory alterations could risk the defeat of summary judgment in a large swath of cases for which a Rule 56 disposition otherwise would be appropriate. Preservation of the original testimony for impeachment at trial serves as cold comfort to the party that should have prevailed at summary judgment. And reopening the deposition before disposition might not be a sufficient remedy, for the deponent who has reviewed his original testimony and settled on an opposite answer may prove unimpeachable. We therefore hold that when reviewing a motion for summary judgment, a district court does not abuse its discretion under Rule 30(e) when it refuses" }, { "docid": "5589254", "title": "", "text": "not seeking compensatory damages or the accounting to which he would be entitled had there been any income from the publication. The Copyright Act provides, however, for statutory damages, 17 U.S.C. § 504(c); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 433-34, 104 S.Ct. 774, 784-85, 78 L.Ed.2d 574 (1984), which he is seeking along with an injunction against Kasraian’s attempting to republish the article. When a party makes damaging admissions in his deposition and then tries to retract them in an affidavit, courts give short shrift to the affidavit. Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995); Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir.1994); Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.1996); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983). Seshadri was not deposed, but Kasraian argues that the affidavit attempts to cover a paper trail so unequivocal as to render the affidavit utterly incredible. Cf. United States v. Property Located at 15 Black Ledge Drive, 897 F.2d 97, 101-02 (2d Cir.1990). The argument raises a general issue of some importance. An affiant’s prior statements cannot be equated to either a deposition, which is under oath, Fed. R. Civ. P. 30(c), or to a judicial admission, as in a pleading, which is binding. Soo Line R.R. v. St. Louis Southwestern Ry., 125 F.3d 481, 483 (7th Cir.1997); Bright v. QSP, Inc., 20 F.3d 1300, 1305 (4th Cir.1994). It is merely an evidentiary admission, or prior inconsistent statement, which does not bind the witness. Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir.1996); United States v. Blood, 806 F.2d 1218, 1221 n. 2 (4th Cir.1986); United States v. McKeon, 738 F.2d 26, 30 (2d Cir.1984). The opposing party can use it to try to discredit the witness’s testimony, but the witness may be able to explain it away. And since a number of judicial opinions say that testimony cannot be rejected as incredible as a matter of law (that is, without need for a trial) unless it contains assertions that are" }, { "docid": "23451802", "title": "", "text": "at 1396). The Amlongs’ submission of the novella-length errata sheet making a slew of material changes to their client’s deposition testimony was improper. See Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir.2005) (upholding a district court’s judgment to strike an errata sheet listing twenty-seven changes, noting that “Rule 30(e) is to be used for corrective, and not contradictory, changes”); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir. 2002) (“We do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony.”); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 388-89 (7th Cir.2000) (explaining that an errata sheet effecting “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not’ ”); Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D.La.1992) (“[Rule 30(e)] cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.”); but see Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.1997) (“[T]he language of [Rule 30(e)] places no limitations on the type of changes that may be made, nor does [Rule 30(e)] require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes — even if those reasons are unconvincing.” (quotation marks and alterations omitted)); Reilly v. TXU Corp., 230 F.R.D. 486, 487-90 (N.D.Tex.2005) (reviewing the various approaches for interpreting the allowable scope of Rule 30(e) changes and ultimately adopting a broad interpretation “consistent with the plain language” of Rule 30(e), allowing any changes, “in form or substance” under Rule 30(e)); cf. EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253, 268 (3d Cir.2010) (“We therefore hold that when reviewing" }, { "docid": "17679758", "title": "", "text": "Union’s Exhibit No. 2 (Deposition of Debtor, p. 43. lines 8-13 and p. 82, lines 13-24); Complaint, Count II, ¶ 11; Credit Union’s Exhibit No. 1 (Transcript of Proceedings on June 12, 1997 before the District Court for the Central District of Illinois, Volume II, p. 202, lines 10-15); Affidavit of Debtor, p. 3, ¶ 2. Pursuant to 11 U.S.C. § 524(f), which states that “[n]othing ... prevents a debtor from voluntarily repaying any debt,” a debtor may enter into a voluntary repayment plan with a creditor. See also In re Hellums, 772 F.2d 379, 381 (7th Cir.1985) (“Debtors who file under [Chapter 7] can dispose of their post-petition earnings as they choose, including voluntary repayment of debts otherwise dis-chargeable in bankruptcy.”). A voluntary repayment plan does not constitute a violation of § 524 or § 362(a). Id.; In re Briggs, 143 B.R. 438, 450 (Bankr.E.D.Mich.1992). The Debtor’s self-serving assertion that the agreement with the Credit Union was not voluntary is without factual support in the record. The lack of corroborating evidence to support the contrary assertions in his affidavit fails to create a genuine issue of material fact. See Piscione, 171 F.3d at 532; Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993); Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995). The Debtor has failed to controvert the undisputed fact that on several occasions, including his prior sworn testimony, he stated that he was voluntarily repaying the Credit Union. Hence, the Court finds that no genuine issue of material fact exists and that the Credit Union is entitled to judgment as a matter of law. C. Whether authorized payroll deductions from a debtor’s post-petition earnings constitute a violation of § 362(a) The Credit Union maintains that it is entitled to summary judgment on the issue of whether authorized payroll deductions from the Debtor’s post-petition earnings constitute a violation of § 362(a). The Debtor contends that he did not voluntarily enter into a repayment plan with the Credit Union and did not voluntarily authorize payroll deductions. It is undisputed that on August 23, 1995, the Debtor" }, { "docid": "23451801", "title": "", "text": "legal standard.” Frazier, 387 F.3d at 1259 (citing Maiz v. Virani, 253 F.3d 641, 662 (11th Cir.2001)). III. A. 28 U.S.C. § 1927 authorizes federal courts to require any attorney “who so multiplies the proceedings in any case unreasonably and vexatiously ... to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” We have long held that “the provisions of § 1927, being penal in nature, must be strictly construed.” Peterson v. BMI Refractories, 124 F.3d 1386, 1395 (11th Cir.1997) (citing Monk v. Roadway Express, Inc., 599 F.2d 1378, 1382 (5th Cir.1979)), aff'd sub nom., Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). The statute’s plain language sets forth three requirements to justify an imposition of sanctions: (1) an attorney must engage in “unreasonable and vexatious” conduct; (2) such “unreasonable and vexatious” conduct must “multiply] the proceedings;” and (3) the amount of the sanction cannot exceed the costs occasioned by the objectionable conduct. McMahan, 256 F.3d at 1128 (citing Peterson, 124 F.3d at 1396). The Amlongs’ submission of the novella-length errata sheet making a slew of material changes to their client’s deposition testimony was improper. See Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir.2005) (upholding a district court’s judgment to strike an errata sheet listing twenty-seven changes, noting that “Rule 30(e) is to be used for corrective, and not contradictory, changes”); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir. 2002) (“We do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony.”); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 388-89 (7th Cir.2000) (explaining that an errata sheet effecting “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not’ ”); Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D.La.1992) (“[Rule 30(e)] cannot be interpreted to allow" }, { "docid": "5886025", "title": "", "text": "Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002). Both courts analogized the situation to the rule that an affidavit may not be used to contradict a witness’s prior sworn testimony. See Thorn, 207 F.3d at 389; Burns, 330 F.3d at 1281-82. The Tenth Circuit reasoned that Federal Rule of Civil Procedure 30(e), which allows a deponent to file an errata sheet: ... cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination. Burns, 330 F.3d at 1282; Garcia, 299 F.3d at 1242 n. 5 (quoting Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D.La.1992)). Moreover, the Seventh Circuit concluded “that a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’ ” Thorn, 207 F.3d at 389. Here, Mr. Reynolds does not contend that the portion of his original deposition testimony that he attempts to amend is an error in transcription. Instead, at oral argument Mr. Reynolds claimed that he confused the March 6, 2001 meeting with a meeting he had with Ms. Pierce in January of 2001. However, Mr. Reynolds’ deposition testimony reads: Q: So, it sounds like, if I understand you correctly, that you were pulled off the Air Canada deal and put onto the Lexmark deal all in the same conversation? A: I don’t know if it’s all in the same conversation. I had been back to the Air Canada deal a couple of times after Linda had told me about the meeting in March. I think she called me, I don’t knoiv, two or three weeks before the meeting was scheduled, and just said, make your schedule so you can be there on the 6th. So I went back, I think, a couple of times to — to Montreal, which is where the Air" }, { "docid": "15136192", "title": "", "text": "hours in a week. We, however, agree with the district court’s conclusion that Piseione failed to present genuine issues of material fact regarding his contention that he could not come within either the administrative or professional exemption. Thus, as a matter of law, based upon the facts construed in a light most favorable to him, we agree with the district court’s conclusion that Piseione did fall within the professional and administrative exceptions under the FLSA, thus, entitling Ernst & Young to summary judgment. A. Piscione’s Affidavit Versus His Deposition Testimony In arguing that genuine issues of material fact exist in the record, Piseione presented the district court with his own affidavit. This affidavit contradicts Piscione’s deposition testimony, upon which Ernst & Young relied, in part, for its motion for summary judgment. It is a well-settled rule of this Court that a plaintiff cannot create an issue of material fact merely by manufacturing a conflict in his own testimony by submitting an affidavit that contradicts an earlier deposition, see Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir.1994), and, in turn, defeat a defendant’s motion for summary judgment. See Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 379 (7th Cir.1995); Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995). “Parties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions.” Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985). Thus, when a conflict arises between a plaintiffs own sworn deposition and his sworn affidavit, the deposition testimony overrides statements made in the affidavit. As we have noted, “[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment.” Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993). When a “deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the state ment in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.”" }, { "docid": "9857279", "title": "", "text": "to work or you’re going to get your ass fired.” It is by now well-settled that a party may not attempt to survive a motion for summary judgment by manufacturing a factual dispute through the submission of an affidavit that contradicts prior deposition testimony. Consequently, “[w]here a deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.” Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995) (citing Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993)). As already noted, Amadio provided no acceptable explanation for his failure to describe Lafayette’s alleged statements during his deposition. As such, because Amadio’s affidavit directly contradicts his prior deposition testimony, the affidavit is inadmissible, and we will only consider Amadio’s deposition testimony. See Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir.1999); Slowiak, 987 F.2d at 1295. Amadio rightly points out that Lafayette’s testimony is seemingly contradictory as well. In Lafayette’s affidavit in support of Ford’s motion for summary judgment, Lafayette maintained that, at the time of his decision to terminate Amadio he did not know that Amadio had been suffering from blindness in his left eye, had hepatitis or had any other infection. On the other hand, Lafayette testified at his deposition that he was of the “opinion” that he was aware of Amadio’s medical information prior to terminating Amadio. Just as a non-moving party may not use a contradictory affidavit to manufacture a factual dispute for the purpose of surviving summary judgment, a moving party may not rely on a contradictory affidavit to negate the existence of a factual dispute for the purpose of winning summary judgment. As a result, and because we view the record in a light most favorable to Amadio, we assume that Lafayette was aware of Amadio’s hepatitis at the time Lafayette terminated Amadio’s employment. Thus, after excluding the contradictory affidavits, and" } ]

[ { "docid": "4458795", "title": "", "text": "included as an integral part of a principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity. Id. (footnotes omitted) (emphasis added). Further, “where the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work,” the activity may be considered integral and indispensable to the principal activities. Id. n. 65 (emphasis added). We recently addressed the compensability of the donning and doffing of job-related apparel in Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir.2003). In Alvarez, we held that donning and doffing of all protective gear was compensable worktime. Id. at 904. We further held that, in considering whether putting on and taking off safety goggles was excluded, the “ease of don ning and ubiquity of use [did] not make the donning of such equipment any less ‘integral and indispensable.’ ” Id. at 903. We clarified that the term “work,” as used in the FLSA, includes even “non-exertional acts.” Id. at 902 (citing Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944) (noting that even “exertion” is not the sine qua non of “work” because “an employer ... may hire a man to do nothing, or to do nothing but wait for something to happen.”)). We also made it clear that the donning and doffing of various types of safety gear, as well as the attendant retrieval and waiting, constituted “work ” Id. Alvarez was decided after the district court had filed its decision in this case. Because there was little Ninth Circuit law on this issue, the district court relied heavily on a Tenth Circuit decision, which reached a contrary conclusion to the one we subsequently announced in Alvarez. We now re-examine the district court’s conclusion under our intervening precedent. Here, as" } ]

[ { "docid": "22998918", "title": "", "text": "was “integral and indispensable” to their jobs, fulfilling mutual obligations of employer and employee. Walking and waiting time, the district court continued, occurred during the principal workday and was thus compensable. For IBP’s FLSA and state-law violations, the district court awarded plaintiffs liquidated damages, a measure of “double” (i.e., exemplary) damages with regard to plaintiffs’ state meal-break claims, and prejudgment interest. Over the next few months, the district court denied plaintiffs’ motion for injunctive relief, conducted a hearing on plaintiffs’ motion for fees and sanctions, and memorialized its fee hearing decisions in a thoroughgoing Order. In its fee Order, the district court denied IBP’s Federal Rules of Civil Procedure 52 and 59 motions and denied plaintiffs’ motion to strike certain aspects of the record. Both IBP and plaintiffs filed timely notices of appeal. We have jurisdiction under 28 U.S.C. § 1291. II It is axiomatic, under the FLSA, that employers must pay employees for all “hours worked.” See 29 U.S.C. §§ 206, 207 (1999); Turner v. City of Philadelphia, 262 F.3d 222, 224 (3d Cir.2001). The threshold question in this case is whether the activities cited by the plaintiffs — donning and doffing, waiting and walking— constitute “work” under the FLSA. We agree with the district court that, under the facts presented by this case, they do. “Work,” the Supreme Court has long noted, is “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Definitionally incorporative, Muscoda! s “work” term includes even non-exertional acts. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944) (noting that even “exertion” is not the sine qua non of “work” because “an employer ... may hire a man to do nothing, or to do nothing but wait for something to happen”). Plaintiffs’ donning and doffing, as well as the attendant retrieval and waiting, constitute “work” under Muscoda and" }, { "docid": "820835", "title": "", "text": "Cir.1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The moving party may “move with or without supporting affidavits for a summary judgment in the party’s favor upon all [claims] or any part thereof.” Fed. R.Civ.P. 56(a). “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e). DISCUSSION “Whether an activity is excluded from hours worked under the FLSA ... is a mixed question of law and fact. The nature of the employees’ duties is a question of fact, and the application of the FLSA to those duties is a question of law.” Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir.2004). Under the FLSA, it is axiomatic that employers pay employees for all hours worked. See Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005); 29 U.S.C. §§ 206, 207. Work is the “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). This definition includes “non-exertional acts.” Alvarez, 339 F.3d at 902; Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). The Portal-to-Portal Act of 1947, however, relieves employers from compensating employees for “activities which are preliminary or postliminary to [the] principal activity or activities.” 29 U.S.C. § 254(a). After passage of the Portal-to-Portal Act of 1947, the Supreme Court held that “activities performed either before or after the regular work shift” are compensable “if" }, { "docid": "4617487", "title": "", "text": "of employees’ duties is a question of fact, and the application of the FLSA to those duties is a question of law. See Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir.2004). Where there is no dispute over the nature of the employees’ activities involved, the question is one of law. See id. Although the FLSA does not clearly define what types of activity qualify as “hours worked,” the Supreme Court has decided several cases in which it elaborated on the types of activities that are compensable work under the FLSA. In Tennessee Coal, Iron & R.R. v. Muscoda Local No. 123, the Supreme Court held that work is “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). See also Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161, 164-65, 65 S.Ct. 1063, 89 L.Ed. 1534 (1945). The Supreme Court has also defined work as including an employee’s non-exertional acts in some circumstances. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944) (providing that exertion is not the sine qua non of work because “an employer ... may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve[.]”). Thus, an employee’s activities, whether or not they are exertional or burdensome, constitute work under the FLSA if they are “pursued necessarily and primarily for the benefits of the employer.” Muscoda, 321 U.S. at 598, 64 S.Ct. 698. Once it has been established that an activity constitutes work, a plaintiff must show that the activity is compensable under the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-62, which amended the FLSA by narrowing the definition of work following the Supreme Court’s decision in Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 690-91, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) (broadly" }, { "docid": "11468175", "title": "", "text": "a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a)(1). Though it requires overtime compensation for work performed, FLSA does not specify what activities constitute work. See Tenn. Coal, Iron, & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944) (“In determining whether [a certain activity] constitutes compensable work or employment within the meaning of the [FLSA], we are not guided by any precise statutory definition of work or employment.”). The Supreme Court stated in Tennessee Coal that, “[t]o hold that an employer may validly compensate his employees for only a fraction of the time consumed in actual labor would be inconsistent with the very purpose and structure of [FLSA].” Id. at 598, 64 S.Ct. 698. The Court concluded that FLSA’s references to “work” and “employment” should be interpreted “as those words are commonly used — as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id.; Chao v. Akron Insulation & Supply, Inc., 184 Fed.Appx. 508, 510 (6th Cir.2006) (citing Tenn. Coal, 321 U.S. at 598, 64 S.Ct. 698). Holding that the time spent by mine workers traveling underground constitutes compensable work, the Court noted that “Nothing in [FLSA] or in reason demands that every moment of an employee’s time devoted to the service of his employer shall be directly production.” Tenn. Coal, 321 U.S. at 599, 64 S.Ct. 698. Shortly after deciding Tennessee Coal, the Supreme Court clarified that an activity need not require exertion to be considered work compensable under FLSA, noting that an employee may be hired “to do nothing, or to do nothing but wait for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S.Ct. 165, 89 L.Ed. 118 (1944); see Chao, 184 Fed.Appx. at 511 (holding that “wait time” is compensable under FLSA if it is “for the employer’s benefit and at its behest”). Subsequently, the Court ruled that" }, { "docid": "23388010", "title": "", "text": "are entitled to compensation for any addi tional commuting time resulting from the City’s policy. A. All Commuting Time The FLSA “guarantee^] compensation for all work or employment engaged in by employees covered by the Act.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Though Congress has never explicitly defined what constitutes work under the FLSA, the Supreme Court has generally described work as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id. at 598, 64 S.Ct. 698; see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 285 (2d Cir.2008). However, exertion is not necessarily required for an activity to be compensable because “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). The issue is whether the “time is spent predominantly for the employer’s benefit or for the employee’s [which] is a question dependent upon all the circumstances of the case.” Id.; see also Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 64-65 (2d Cir.1997). Because the activity at issue here occurs outside the scheduled workday, the Portal-to-Portal Act, which amended the FLSA, adds a further obstacle to the plaintiffs’ potential recovery. The Portal-to-Portal Act exempts employers from compensating employees under the FLSA “for or on account of’ time spent “traveling to and from the actual place of performance of the principal activity or activities” of employment and any activities which are “preliminary to or postliminary to said principal activity or activities.” 29 U.S.C. § 254(a). The Supreme Court has interpreted this provision to mean that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity.’ ” IBP, Inc. v. Alvarez, 546 U.S. 21, 37, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). Accordingly, while employees need not be" }, { "docid": "16225588", "title": "", "text": "doffing times is de minimis, making the donning and doffing time non-compensable. Employees do not challenge the jury’s findings. Employees appeal the following findings in the partial summary judgment decision: (1)that the time employees must necessarily spend walking and waiting in connection with obtaining, donning, doffing, and disposing of the sanitary and protective gear required by Barber Foods and/or federal regulation is not compensable; (2) that the time spent donning and doffing clothing, equipment, and gear which is not expressly required by Barber Foods is non-compensable. In addition, Employees challenge two district court jury instructions. II. Standard of Review We review summary judgment decisions de novo. Kauch v. Dep’t for Children, Youth and Their Families, 321 F.3d 1, 3-4 (1st. Cir.2003). Construing the facts in the light most favorable to the nonmoving party, our role is to “determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Discussion The FLSA requires an employer to record, credit, and compensate employees for all of the time which the employer requires or permits employees to work, 29 U.S.C. § 201, et seq., commonly defined as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). However, even when an activity is properly classified as “work,” the Portal-to-Portal Act, 29 U.S.C. § 254, exempts from compensation activities which are preliminary or postliminary to an employee’s principal activity or activities unless they are an “integral and indispensable part of the principal activities for which covered work[ers] are employed and not specifically excluded by section 4(a)(1) [of the Portal-to-Portal Act].” Lindow v. United States, 738 F.2d 1057, 1060 (9th Cir.1984) (citation omitted). In addition, some activities may qualify as “work” and fall outside of the Portal-to-Portal Act, but still not require compensation because the activities require such little time that" }, { "docid": "22998919", "title": "", "text": "The threshold question in this case is whether the activities cited by the plaintiffs — donning and doffing, waiting and walking— constitute “work” under the FLSA. We agree with the district court that, under the facts presented by this case, they do. “Work,” the Supreme Court has long noted, is “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Definitionally incorporative, Muscoda! s “work” term includes even non-exertional acts. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944) (noting that even “exertion” is not the sine qua non of “work” because “an employer ... may hire a man to do nothing, or to do nothing but wait for something to happen”). Plaintiffs’ donning and doffing, as well as the attendant retrieval and waiting, constitute “work” under Muscoda and Armour’s catholic definition: “pursued necessarily and primarily for the benefit of the employer,” Muscoda, 321 U.S. at 598, 64 S.Ct. 698, these tasks are activity, burdensome or not, performed pursuant to IBP’s mandate for IBP’s benefit as an employer. 323 U.S. at 133, 65 S.Ct. 165, 321 U.S. at 598, 64 S.Ct. 698. The activities, therefore, constitute “work.” That such activity is “work” as a threshold matter does not mean without more that the activity is necessarily compensa-ble. The Portal-to-Portal Act of 1947 relieves an employer of responsibility for compensating employees for “activities which are preliminary or postliminary to [the] principal activity or activities” of a given job. 29 U.S.C. § 254(a) (1999). Not all “preliminary or postliminary” activities can go uncompensated, however. “[A]ctiv-ities performed either before or after the regular work shift,” the Supreme Court has noted, are compensable “if those activities are an integral and indispensable part of the principal activities.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956); see also Mitchell v. King Packing Co., 350" }, { "docid": "820836", "title": "", "text": "910 (9th Cir.2004). Under the FLSA, it is axiomatic that employers pay employees for all hours worked. See Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005); 29 U.S.C. §§ 206, 207. Work is the “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). This definition includes “non-exertional acts.” Alvarez, 339 F.3d at 902; Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). The Portal-to-Portal Act of 1947, however, relieves employers from compensating employees for “activities which are preliminary or postliminary to [the] principal activity or activities.” 29 U.S.C. § 254(a). After passage of the Portal-to-Portal Act of 1947, the Supreme Court held that “activities performed either before or after the regular work shift” are compensable “if those activities are an integral and indispensable part of the principal activities for which [the] workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). In Steiner, production employees at a battery plant were required to don protective work clothes before commencing work and to shower and change back at the end of the work day. The Court held that employees should be compensated for the time spent donning and doffing their protective work clothes because the process was “integral and indispensable” to allay the dangers inherent in the principal activity of battery production. Id. The Ninth Circuit has held that donning and doffing of both unique and non-unique protective gear are integral and indispensable to the employee’s principal activities if they were: 1) necessary to the principal work performed; and 2) done for the benefit of the employer. Alvarez, 339 F.3d at 902-03. In Alvarez, a meat products producer required its production employees to wear protective gear, including liquid-repelling sleeves, aprons and leggings, after they got to" }, { "docid": "9496200", "title": "", "text": "der special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. 29 C.F.R. § 785.19(a). See, e.g., Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1477 (11 Cir., 1990) (“Thus, the essential consideration in determining whether a meal period is a bona fide meal period or a compensable rest period is whether the employees are in fact relieved from work for the purpose of eating a regularly scheduled meal... The firefighters are subject to real limitations on their freedom during mealtime which inure to the benefit of the county; accordingly, the three mealtime periods are com-pensable under FLSA regulations for overtime purposes.”) Despite the Eleventh Circuit’s ruling in the Kohlheim case, the plaintiffs forthrightly acknowledge that this test has not been applied by the majority of the Circuits in meal period cases. The majority of Circuits follow law set forth by the Supreme Court in the years following the enactment of the FLSA in which the Supreme Court addressed the Act’s definition of work. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949 (1944), work was defined as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his businesses.” Tennessee Coal, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). In two companion cases, the Court “reiterated that lower courts should adopt a practical approach based on the realities of each case in determining whether employees were spending certain periods of time predominantly for the benefit of the employer or for their own benefit.” Henson v. Pulaski County Sheriff Dept., 6 F.3d 531, 533 (8 Cir., 1993) (citing Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944); Skidmore, 323 U.S. at 136-37," }, { "docid": "4500490", "title": "", "text": "149 (2d Cir.1998). Credibility assessments and choices between conflicting versions of events, when material to the inquiry, are determinations that the Court must leave for a jury. See Fischl v. Armi-tage, 128 F.3d 50, 55 (2d Cir.1997). The Court is compelled to draw all reasonable inferences in favor of the nonmoving party. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. A genuine issue exists if a reasonable jury could find in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 2. Motion for summary judgment of the FLSA claim Enacted to ensure that employees receive a “fair day’s pay for a fair day’s work,” the FLSA, 29 U.S.C. § 201 et seq., guarantees compensation for all work performed by employees covered by the Act. Gorman v. Consol. Edison Corp., 488 F.3d 586, 589 (2d Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 2902, 171 L.Ed.2d 841 (2008). “Work” was not defined in the FLSA, so the Supreme Court in Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944), relied on both the statute’s language and Webster’s Dictionary to define it as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” The Supreme Court later clarified that “exertion” was not necessary for an activity to constitute “work,” for “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). In essence, the “work” inquiry asks whether the “time is spent predominantly for the employer’s benefit or for the employee’s ... a question dependent upon the circumstances of the case.” Id. (cited in Singh v. City of New York, 524 F.3d 361, 367 (2d Cir.2008)). Not all work-related activities constitute “work” that must be compensated under the FLSA. Gorman, 488" }, { "docid": "23596896", "title": "", "text": "after them whenever the need may arise, even if it were in the middle of the night, and to maintain a suitable relationship with the dog at all times when they are in the dog’s presence. Acceptance of the DOL’s arguments would require the conclusion that handlers must be compensated around the clock, waking and sleeping, because certain obligations are always present. To resolve the dispute in this case, it is necessary to return to the basic principle that underlies the FLSA: Employees are entitled to compensation only for “work.” As the Supreme Court found in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949 (1944), an activity constitutes “work” (compensable under the FLSA) if it involves “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id. at 598, 64 S.Ct. at 703. To be sure, on occasions, courts have found that compensa-ble work can occur despite absence of exertion, where, for example, employees have been required to stand by and wait for the employer’s benefit. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944); Vega v. Gasper, 36 F.3d 417, 425-27 (5th Cir.1994); Hill v. United States, 751 F.2d 810, 812-13 (6th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985). Here, however, the activity of commuting involved neither exertion nor loss of time. Although forbidden to use public transportation, the handlers were not required to drive; the only requirement was that the ride be in a private vehicle. And the district court explicitly found that the handlers’ commuting time was not substantially increased by their dog-care activities. 839 F.Supp. at 178. We believe that the district court erred when it concluded that the handlers’ entire commute should be compensated. The DOL did not demonstrate that the entire commute satisfies the statutory concept of compensa-ble work, as illuminated by the Supreme Court’s decisions in Tennessee Coal" }, { "docid": "14495881", "title": "", "text": "operators, 1 minute 53 seconds for meatroom associates, 2 minutes 8 seconds for shipping and receiving associates, and no time for maintenance and sanitation workers because they are not required to don clothing before punching in or to doff clothing after punching out. The jury found that each of these donning and doffing times is de minimis, making the donning and doffing time non-compensable. Employees do not challenge the jury’s findings. Employees appeal the following findings in the partial summary judgment decision: (1) that the time employees must necessarily spend walking and waiting in connection with obtaining, donning, doffing, and disposing of the sanitary and protective gear required by Barber Foods and/or federal regulation is not compensable; (2) that the time spent donning and doffing clothing, equipment, and gear which is not expressly required by Barber Foods is non-compensable. In addition, Employ ees challenge two district court jury instructions. II. Standard of Review We review summary judgment decisions de novo. Kauch v. Dep’t for Children, Youth and Their Families, 321 F.3d 1, 3-4 (1st Cir.2003). Construing the facts in the light most favorable to the nonmov-ing party, our role is to “determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Discussion The FLSA requires an employer to record, credit, and compensate employees for all of the time which the employer requires or permits employees to work, 29 U.S.C. § 201, et seq., commonly defined as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944); see also Reich v. New York City Transit Auth., 45 F.3d 646, 649 (2d Cir.1995). However, even when an activity is properly classified as “work,” the Portal-to-Portal Act, 29 U.S.C. § 254, exempts from compensation activities which are preliminary or postliminary to an employee’s principal activity or activities" }, { "docid": "23388009", "title": "", "text": "a citizen upon matters of public concern. Id. at 404-05. DISCUSSION On appeal, the plaintiffs argue that the district court erred in concluding: (1) that their commuting time was not compensa-ble under the FLSA; and (2) that Singh’s retaliation claim fails because he did not engage in protected speech on a matter of public concern. This Court reviews a district court’s grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party and resolving all factual ambiguities in its favor. See Buffalo Teachers Fed’n v. Tobe, 464 F.3d 362, 367 (2d Cir.2006). Summary judgment is appropriate only if we conclude that the case presents “no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). I. FLSA Claim We analyze the plaintiffs’ FLSA claim in two parts: whether the plaintiffs are entitled to compensation for their entire commute because the City requires them to carry inspection documents during their commute; and if not, whether the plaintiffs are entitled to compensation for any addi tional commuting time resulting from the City’s policy. A. All Commuting Time The FLSA “guarantee^] compensation for all work or employment engaged in by employees covered by the Act.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Though Congress has never explicitly defined what constitutes work under the FLSA, the Supreme Court has generally described work as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id. at 598, 64 S.Ct. 698; see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 285 (2d Cir.2008). However, exertion is not necessarily required for an activity to be compensable because “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118" }, { "docid": "22938479", "title": "", "text": "suggests a broader view of compensability of meal periods under the FLSA, the Secretary in its brief cites both letters as examples of the DoL’s “practical,” and thus implicitly flexible, approach to construing § 785.19. See Brief of Secretary of Labor at 19-21. This flexible approach to determining compensability of meal break activity is consistent with the reasoning of various courts. The central issue in mealtime cases is whether employees are required to “work” as that term is understood under the FLSA. See Henson v. Pulaski County Sheriff Dep’t, 6 F.3d 531, 533-34 (8th Cir.1993). Although the FLSA itself does not define “work,” the Supreme Court has attempted to do so. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944), the Court held that “work” under the FLSA means “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” At about the same time, the Court counseled that the determination of what constitutes work is necessarily fact-bound. See, e.g., Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944) (“Whether time is spent predominantly for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case.”); Skidmore v. Swift & Co., 323 U.S. 134, 136-37, 65 S.Ct. 161, 162-63, 89 L.Ed. 124 (1944) (similar). For example, time spent waiting for an event to occur, such as a fire, may constitute work if an employer hired an employee for that function. See Armour, 323 U.S. at 133-34, 65 S.Ct. at 168-69; Skidmore, 323 U.S. at 136-37, 65 S.Ct. at 162-63. To be consistent with the FLSA’s use of the term “work” as construed in Armour and Skidmore, we believe § 785.19 must be interpreted to require compensation for a meal break during which a worker performs activities predominantly for the benefit of the employer. See Lamon v. City of Shawnee, Kansas, 972 F.2d 1145," }, { "docid": "20670069", "title": "", "text": "employees prior to the shift, during breaks, and after the shift require compensation under the FLSA? A. Line Time The generally prevailing practice in the poultry processing industry is to pay production employees according to “line time.” Neither the Fair Labor Standards Act nor any regulations interpreting the same provide any legal basis for the contention that Pilgrim’s Pride is in violation of the FLSA for capturing hours worked through the use of “line time.” Accordingly, the Court finds that Defendant’s method of utilizing “line time” to capture hours worked along with its accompanying documentation system complies with the record-keeping provisions of the FLSA as a matter of law. B. Donning, Doffing, and Cleaning of Sanitary and Safety Equipment 1. Work The FLSA requires that an employer pays its employees for time spent engaged in work. Work is “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” See Reich v. IBP, Inc., 38 F.3d 1123, 1125-26 (10th Cir.1994) (quoting Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944)). In the instant ease, the majority of “line employees” wear a hairnet, ear plugs, rubber boots, and gloves (cotton, rubber, or both). In addition, many employees wear an apron and a smock. During the course of the trial, the Court viewed a videotape of line employees donning and doffing this type of equipment. The videotape indicated that many employees take less than a minute to put on this equipment. In addition, the videotape showed several employees putting on certain items of clothing (e.g., hairnet, ear protection, gloves, smock, apron, etc.) while walking to their individual work station. Furthermore, other evidence adduced at trial indicated that the rubber boots are, in most cases, put on by the line employees prior to arriving at the plant. Due to the fact that the donning and doffing of these items takes seconds to accomplish and requires very little concentration, the Court finds that the donning and doffing" }, { "docid": "15895126", "title": "", "text": "for doffing the other items or for walking back to the locker room.) The current collective bargaining agreement between plaintiffs and defendant does not guarantee compensation for the time spent donning and doffing personal protective equipment. OPINION A. Fair Labor Standards Act Although the Fair Labor Standards Act includes many different provisions, its core requirement can be reduced to a simple and now uncontroversial proposition: employers must pay their employees a wage for all of the “work” that they do. 29 U.S.C. §§ 206 and 207; Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1285 (10th Cir.2006); Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003). There are two related exceptions to this rule that are relevant to this case. Work may not be compensable under the FLSA if it (1) is “preliminary to or postliminary to” the employee’s “principal” activities and if it occurs “prior to” or “subsequent to” the “workday,” 29 U.S.C. § 254(a)(2); or (2) consists of “changing clothes,” 29 U.S.C. § 203(o). A third non-statutory exception has been carved out by the courts, which is whether a particular activity is “de minim-is.” The FLSA does not define “work,” but the Supreme Court has construed it broadly. One commonly cited definition comes from Tennessee Coal, Iron & Rail Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944): “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” But even this view may sound more restrictive than it actually is. The reference to “physical or mental exertion” does not mean that only heavy labor and solving equations are covered. The Court has placed much greater emphasis on “[w]hether time is spent predominantly for the employer’s benefit or for the employee’s,” Armour & Co. v. Wantock, 323 U.S. 126, 133-34, 65 S.Ct. 165, 89 L.Ed. 118 (1944), on the ground that “[njothing in the statute or in reason demands that every moment of an employee’s time devoted to the service of" }, { "docid": "18184546", "title": "", "text": "is understood under the FLSA.” Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 64 (2d Cir.1997) (citing Henson v. Pulaski Cty. Sheriff Dep’t, 6 F.3d 531, 533-34 (8th Cir.1993)). “[T]he [Supreme] Court [has] held that ‘work’ under the FLSA means ‘physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.’ ” Id. (quoting Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944)). Indeed, “the Court counseled that the determination of what constitutes work is necessarily fact-bound.” Id. (citing Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944); Skidmore, 323- U.S. at 136-37, 65 S.Ct. 161). When courts evaluate which hours should be compensated as work, “the answer depends [in part] upon the degree to which the employee is free to engage in personal activities during periods of idleness.” Skidmore, 323 U.S. at 138, 65 S.Ct. 161 (internal quotation marks omitted). The Supreme Court has further clarified: Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case. Armour, 323 U.S. at 133, 65 S.Ct. 165. Where employees have faced significant restrictions for the benefit of their employer, meal periods have been considered compensable work under the FLSA. During such periods when “workers [were] restricted to the site for the purpose of performing valuable security service for the company,” the Second Circuit found the meal period to be compensable as work. Reich, 121 F.3d at 65. Although observing that “the workers perform different services during meal breaks than throughout the rest of the day,” the Second Circuit reasoned that “the workers’ on-site presence [during meals] is solely for the" }, { "docid": "12185699", "title": "", "text": "not compensable under the FLSA. The FLSA requires the payment of a minimum wage to “employees who in any workweek [are] engaged in commerce or in the production of goods.” 29 U.S.C. § 206(a). The FLSA does not provide a statutory definition of work or employment; however, Supreme Court decisions have established guidelines for determining whether or not hours worked are covered by the FLSA. In Tennessee Coal, Iron & R. Co. v. Muscoda Local 123, 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944), the Court interpreted the FLSA to embrace “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” See also Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S. Ct. 165, 168, 89 L.Ed. 118 (1944). Appellant argues that because appellees are required to make the pre-trip safety inspection by federal regulations, such activity is not “controlled or required by the employer.” Appellant further argues that these inspections are “primarily for the benefit” of the driver and not “of the employer and his business.” Both these arguments are without merit. The fact that a pre-trip safety inspection is required by federal regulations does not remove the employer’s control over and responsibility for this inspection. And, although the individual driver of the vehicle will, of course, benefit from the safety inspection and repair of defects, appellant and the trucking industry as a whole, not to mention the motoring public, are certainly beneficiaries of the inspection procedure. We thus hold that the activity involved here meets the standard set forth by the Supreme Court for compensable activity under the FLSA. Cf. Leone v. Mobil Oil Corp., 523 F.2d 1153, 1162 (D.C.Cir.1975) (time spent by employee representative in voluntarily accompanying federal inspectors in a workplace inspection is not compensable under the FLSA because employer does not select employee representative or regulate his conduct and because the employees are the beneficiaries of the inspection). Appellant next argues that, in any event, liability is precluded by § 4(a)" }, { "docid": "11468190", "title": "", "text": "doffing a uniform constituted work, in light of the facts that the employer required employees to change into uniforms at the plant and that the uniforms benefitted the employer by reducing the risk of contamination. Id. at 911. The Court thus reversed the district court’s ruling and remanded the case for a determination of whether the time spent donning and doffing was de minimis. Id. at 912. Most recently, the Third Circuit addressed this issue in the case of De Asen-cio, which involved the donning and doffing of gear at a meat processing plant operated by Tyson, one of the defendants here. The Court began by reviewing the Supreme Court’s opinion in Alvarez, stating that “Alvarez not only reiterated the broad definition of work, but its treatment of walking and waiting time under the Portal-to-Portal Act necessarily precludes the consideration of cumbersomeness or difficulty on the question of whether activities are ‘work.’ ” De Asencio, 500 F.3d at 370-71. The Court followed Ballañs in rejecting the Tenth Circuit’s rationale in Reich, concluding that the question of whether donning and doffing gear constitutes work does not entail any consideration of “whether the gear was cumbersome, heavy, or required concentration to don and doff,” but rather simply consideration of whether the activity was “controlled or required by the employer and pursued for the benefit of the employer.” Id. at 373. The collective wisdom of these circuit courts makes crystal clear that exertion is not required for an activity to constitute work under FLSA and the Portal-to-Portal Act. B. Required by Employer As exertion is not required for an activity to constitute compensable work under FLSA, the question of whether the plaintiffs’ pre- and post-production activities constitute work turns on whether those activities are required by the employer, whether they are undertaken primarily for the employer’s benefit, and whether those activities, which are preliminary and post-liminary, are nevertheless integral and indispensable to the plaintiffs’ principal activities such that they are not excluded from FLSA coverage by the Portal-to-Portal Act. See Brock v. City of Cincinnati, 236 F.3d 793, 801 (6th Cir.2001); De Asencio," }, { "docid": "15895127", "title": "", "text": "out by the courts, which is whether a particular activity is “de minim-is.” The FLSA does not define “work,” but the Supreme Court has construed it broadly. One commonly cited definition comes from Tennessee Coal, Iron & Rail Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944): “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” But even this view may sound more restrictive than it actually is. The reference to “physical or mental exertion” does not mean that only heavy labor and solving equations are covered. The Court has placed much greater emphasis on “[w]hether time is spent predominantly for the employer’s benefit or for the employee’s,” Armour & Co. v. Wantock, 323 U.S. 126, 133-34, 65 S.Ct. 165, 89 L.Ed. 118 (1944), on the ground that “[njothing in the statute or in reason demands that every moment of an employee’s time devoted to the service of his employer shall be directly productive.” Tennessee Coal, Iron & Rail Co., 321 U.S. at 599, 64 S.Ct. 698; see also Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691, 66 S.Ct. 1187, 90 L.Ed. 1515(1946) (concluding that nonproductive activity was “work” because it “was under the complete control of the employer”). Thus, the Court has concluded that “work” encompasses activities such as traveling on a railcar through a mine shaft, watching and guarding a building, Tennessee Coal, Iron & Rail Co., 321 U.S. at 599, 64 S.Ct. 698, and even standing and waiting, Armour & Co., 323 U.S. at 133-34, 65 S.Ct. 165. Defendant does not refute plaintiffs’ assertion that donning and doffing the personal protective equipment is “work” under the Supreme Court’s definition. Rather, it argues that plaintiffs’ conduct falls within the exceptions listed above. I will consider each of those in turn. 1. Preliminary and postliminary activities Under the Portal-to-Portal Act, certain activities are withdrawn from the pay mandates of the FLSA, including “activities which are preliminary to or postliminary to" } ]

[ { "docid": "603887", "title": "", "text": "in the statute, and failure to do so will negative the purpose of Congress in this regard. But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. United States v. Bowman, 260 U.S. 94, 97-98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922). The nature of the enactment here in question mandates an extraterritorial application under the second category described in Bowman. These two statutes are part of a comprehensive legislative scheme designed to halt drug abuse in the United States by exercising effective control over the various domestic and foreign sources of illegal drugs. Comprehensive Drug Abuse Prevention and Control Act of 1970 § 101, 21 U.S.C.A. § 801; H.R.Rep.No.1444, 91st Cong., 2d Sess. reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 4566, 4567. The power to control efforts to introduce illicit drugs into the United States from the high seas and foreign nations is a necessary incident to Congress’ efforts to eradicate all illegal drug trafficking. In other instances, courts have upheld extraterritorial applications of United States law where the nature of the activities warranted a broad sweep of power. See, e. g., IIT v. Vencap, Ltd., 519 F.2d 1001" } ]

[ { "docid": "460981", "title": "", "text": "to import marijuana into the United States); Baker, 609 F.2d at 137-39 (possession with intent to distribute and conspiracy to import marijuana); see also United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir.1994) (murder abroad to further a drug-trafficking enterprise); United States v. Harvey, 2 F.3d 1318, 1329 (3d Cir.1993) (possession of child pornography made abroad); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991) (accessory after-the-fact to kidnaping and murder of government agent abroad); Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984) (conspiracy to import drugs into the United States). Relying on Bowman, the Ninth Circuit in Brulay v. United States, 383 F.2d 345 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967) determined that Congress intended the pre-1994 version of section 545 to apply extra-territorially. That case involved a conspiracy to smuggle amphetamine tablets into the United States in violation of section 545 and the general conspiracy statute, 18 U.S.C. § 371. The court found that even though the alleged conspiracy had not been formed in the United States, the defendant’s overt acts occurred outside the United States, and the defendant was arrested outside the United States, the statute still could be applied to his conduct. The court reasoned: “Since smuggling by its very nature involves foreign countries, and since the accomplishment of the crime always requires some action in a foreign country, we have no difficulty inferring that Congress did intend that the provisions of 18 U.S.C. § 545 should extend to foreign countries at least as to citizens of the United States.... ” 383 F.2d at 350. Although this Court has not had occasion to adopt Brulay, we did endorse that decision in MacAllister, where we ruled that even in the absence of a clear Congressional statement of intent 18 U.S.C. § 963 could be applied extraterritorially to reach a conspiracy to export cocaine from Canada to the United States. We explained that “‘[b]y its very nature [drug smuggling] involves foreign countries, and ... the accomplishment of the crime always requires some action" }, { "docid": "422517", "title": "", "text": "right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents.... In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. 260 U.S. at 98, 43 S.Ct. 39. Accordingly, we adhere to the view we originally expressed in Gladue. The only category of offenses exempt under the language of Bowman from any presumption against extraterritoriality and for which a congressional intent for extraterritorial application can be “inferred from the nature of the offense” are those involving “obstructions” and “frauds” against the Government. See United States v. Gatlin, 216 F.3d 207, 211 n. 5 (2d Cir.2000). (2) Indicia of Congressional Intent Our conclusion that the CPPA is subject to a presumption against extraterritoriality under Aramco and Bowman does not end our inquiry into its applicability. We now “look to see whether ‘language in the [relevant statute] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.’ ” Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (quoting Foley Bros., 336 U.S. at 285, 69 S.Ct. 575). In searching for the clear expression of congressional intent required by Aramco, we are not limited to the text of the statute and can “consider ‘all available evidence’ about the meaning of the statute, including its text, structure, and legislative history.” Gatlin, 216 F.3d at 212 (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 177, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993)). (a) Text and Structure Our reading of the CPPA does not find any indication in the text and structure of the statute of a congressional purpose to extend its coverage. See Bradley Scott Shannon, The Jurisdictional Limits of Federal Criminal Child Pornography Law, 21 Hawaii L.Rev. 73, 106 (1999) (noting that the language of the CPPA “do[es] not clearly express an intent” that the" }, { "docid": "3417707", "title": "", "text": "of legislative intent or otherwise impermissible. It is now well-settled that Congress has the authority to enforce laws that apply beyond the borders of the United States. See Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (stating that “Congress has the authority to enforce its laws beyond the territorial boundaries of the United States.”); see also United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994)(noting that “[generally there is no constitutional bar to the extraterritorial application of United States penal laws.”). While it is true courts presume legislation is not meant to have extraterritorial application, this presumption is merely a canon of statutory construction that can be, and often is, rebutted. Courts have deemed this presumption overcome where the exercise of extraterritorial power can be “inferred from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.1990)(quoting United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980)). The ultimate question remains whether there are sufficient indicia of congressional intent to apply the CPPA ex-traterritorially. Here, both the nature of the offense and Congress’ other legislative efforts in this area, confirm the CPPA was intended to have broad application. The transmission (and subsequent receipt) of child pornography over the Internet is conduct that is rarely constrained by geographical borders. As such, targeting “extraterritorial” conduct of this nature makes sense. See Corey, 232 F.3d at 1170 (stating “the presumption does not apply where the legislation implicates concerns that are not inherently domestic.”). As noted in the committee report on Senate Bill 1237 (the bill that was ultimately passed into law as the CPPA), the concern of Congress in passing this legislation, among others, was that the “child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.” S.Rep. No. 104-358 at 17, 104th Congress, 2d Session, August 27, 1996 (citing New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982))(internal quotation marks omitted). The victimization of" }, { "docid": "7318334", "title": "", "text": "national territory. In Arabian Am. Oil Co., the Supreme Court made no mention of the separate standard for criminal offenses set out in Bowman, and thus did not overrule that precedent. We note that federal courts have declined to apply the analysis of Arabian Am. Oil Co. in construing congressional intent in criminal statutes. See United States v. Plummer, 221 F.3d 1298, 1305 n. 4 (11th Cir.2000); United States v. Dawn, 129 F.3d 878, 882 n. 7 (7th Cir.1997); United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir.1994); United States v. Harvey, 2 F.3d 1318, 1327 (3d Cir.1993). See also United States v. Gladue, 4 M.J. 1, 4-5 (C.M.A.1977). We conclude that the analytical framework established by Bowman must control our analysis in this case. We may infer congressional intent “from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980). We consider first the purpose of the statute. See generally Bradley Scott Shannon, The Jurisdictional Limits of Federal Criminal Child Pornography Law, 21 Hawaii L.Rev. 73 (Summer, 1999). The Protection of Children Against Sexual Exploitation Act of 1977 was the basis for Congress’ statutory approach to concerns about the sexual exploitation of children. The Act was part of a “comprehensive statutory scheme to eradicate sexual exploitation of children.” United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.1990). The statute at issue, 18 U.S.C. § 2252A, was part of the Child Pornography Prevention Act of 1996, one of several amendments that expanded the reach of the congressional enactments. Congress specifically found that “the elimination of child pornography and the protection of children from sexual exploitation provide a compelling governmental interest for prohibiting the production, distribution, possession, sale, or viewing of visual depictions of children engaging in sexually explicit conduct----” Pub.L. 104-208, Div. A, Title I, § 121, subsec. 1 (Sept 30, 1996). Indeed, the Act includes several provisions that clearly reach conduct occurring outside the United States. See 18 U.S.C. § 2252(a)(4)(A) and (5)(A) (punishing the sale, possession with" }, { "docid": "7318337", "title": "", "text": "United States. A citizen of the United States who sends child pornography from New York to Washington D.C. would be subject to this statute; common sense suggests that Congress would be equally interested in preventing that same citizen from making the same distribution to Washington D.C. from a foreign country. Logic dictates that Congress would not have passed a statute to punish the transportation of child pornography in foreign commerce, while “simultaneously undermining the statute by limiting its extraterritorial application.” See United States v. MacAllister, 160 F.3d 1304, 1308 (11th Cir.1998). In Bowman, the Supreme Court demonstrated the proper application of this inference by noting, inter alia, that the crime of forging ship’s papers applied extraterritorially because, “The natural inference from the character of the offense is that the sea would be a probable place for its commission.” Bowman, 260 U.S. at 99, 43 S.Ct. 39. The Bowman Court offered other examples of offenses, such as enticing desertion from the naval service, bribing military officers, or stealing military property, and noted that it could be properly inferred from the nature of the crime that Congress intended the statutes to apply outside the United States. Id. at 99-100, 43 S.Ct. 39. Federal courts have taken the same approach. See Plummer, 221 F.3d at 1305 (“Congress’s intent to apply [the attempted smuggling] provision extra-territorially may be inferred from the nature of the offense and the problem at which the statute is directed”); Vasquez-Velasco, 15 F.3d at 839 n. 4 (“Limiting the jurisdiction of drug smuggling statutes to activities that occur within the United States would severely undermine their scope and effective operation”); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991) (Congress intended statute punishing kidnapping and murder of DEA agent to apply extraterritorially); Thomas, 893 F.2d at 1069 (holding Congress intended 18 U.S.C. § 2251(a), punishing the creation of child pornography intended to be transported in interstate or foreign commerce, to apply extraterritorially)- Perhaps most significantly, we must also consider the nature of the offense Congress intended to punish. As part of the statutory framework for combating the sexual exploitation" }, { "docid": "422516", "title": "", "text": "with intent to distribute fell within “the second category described in Bowman” and thus was intended to apply extraterritorially. Id. at 137. The holding in Baker has been subsequently used to support the “inference” of a congressional intent for extraterritorial application in several circumstances that do not involve crimes against the Government, including child pornography-related offenses. See, e.g., United States v. Harvey, 2 F.3d 1318, 1327 (3d Cir.1993)(sentencing guidelines for child pornography offenses); Thomas, 893 F.2d at 1068-69 (production of child pornography under 18 U.S.C. § 2251). We disagree, however, with Baker s expanded view of the “second category” offenses in Bowman. The phrase “inferred from the nature of the offense” in Bowman was clearly cast in reference to the “class” of criminal statutes involving fraud or obstruction against the Government and is not a free standing principle of statutory construction: But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents.... In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. 260 U.S. at 98, 43 S.Ct. 39. Accordingly, we adhere to the view we originally expressed in Gladue. The only category of offenses exempt under the language of Bowman from any presumption against extraterritoriality and for which a congressional intent for extraterritorial application can be “inferred from the nature of the offense” are those involving “obstructions” and “frauds” against the Government. See United States v. Gatlin, 216 F.3d 207, 211 n. 5 (2d Cir.2000). (2) Indicia of Congressional Intent Our conclusion that the CPPA is subject to a presumption against extraterritoriality under Aramco and Bowman does not end our inquiry into its applicability. We now “look to see whether ‘language in the [relevant" }, { "docid": "8035049", "title": "", "text": "some circumstances — for example, an extended period of time between the production of the pornography on the one hand and on the other hand the possession ultimately culminating in the arrest — under which it would be inappropriate to consider the production as conduct relevant to the offense of possession or receipt. See generally United States v. Sykes, 7 F.3d 1331, 1336-37 (7th Cir.1993); United States v. Caicedo, 937 F.2d 1227, 1236 (7th Cir.1991); cf. United States v. Robinson, No. 95-10267-JLT, 1997 WL 136430, *3 (D.Mass. March 7, 1997) (defendant's creation of pornographic photographs not relevant to his subsequent conviction for possession, where photographs were taken years before possession of child pornography was made a federal offense). . But see United States v. Azeem, 946 F.2d 13, 17 (2d Cir.1991). There the court, taking note of section 4A1.2(h) (which provides that foreign sentences may not be included in computation of the defendant's criminal history category but may be used as a basis for an upward departure under section 4A1.3) concluded that \"foreign crimes” (distribution of cocaine abroad, for example) may not be considered in setting the base offense level because they are not crimes against the United States. See also United States v. Chunza-Plazas, 45 F.3d 51, 57-58 (2d Cir.1995). We discuss and distinguish these cases below. . Bowman recognizes an exception to the presumption against extraterritorial intent for \"criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents.” 260 U.S. at 98, 43 S.Ct. at 41. The Ninth Circuit has concluded that this exception survives Arabian American Oil and permits the application of certain statutes beyond U.S. boundaries even in the absence of an affirmative statement of congressional intent for these statutes to apply extraterritorially. United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir.1994); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204-05 & n. 3 (9th Cir.1991), cert. denied," }, { "docid": "460980", "title": "", "text": "thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. Id. at 97-98, 43 S.Ct. at 41 (emphasis added). Thus, as this Court explained in United States v. MacAllister, 160 F.3d 1304, 1307-08 (11th Cir.1998), reh’g and reh’g en banc denied, 176 F.3d 496 (11th Cir.), cert. denied, — U.S. -, 120 S.Ct. 318, 145 L.Ed.2d 114 (1999): “Bowman established the rule that Congress need not expressly provide for extraterritorial application of a criminal statute if the nature of the offense is such that it may be inferred.” On authority of Bowman, courts in this Circuit and elsewhere have routinely inferred congressional intent to provide for extraterritorial jurisdiction over foreign offenses that cause domestic harm. See, e.g., MacAllister (discussed infra); United States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir.1984) (conspiracy to murder government agents and assault of government agents abroad); United States v. Perez-Herrera, 610 F.2d 289, 290 (5th Cir.1980) (attempt to import marijuana into the United States); Baker, 609 F.2d at 137-39 (possession with intent to distribute and conspiracy to import marijuana); see also United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir.1994) (murder abroad to further a drug-trafficking enterprise); United States v. Harvey, 2 F.3d 1318, 1329 (3d Cir.1993) (possession of child pornography made abroad); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991) (accessory after-the-fact to kidnaping and murder of government agent abroad); Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984) (conspiracy to import drugs into the United States). Relying on Bowman, the Ninth Circuit in Brulay v. United States, 383 F.2d 345 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967) determined that Congress intended the pre-1994 version of section 545 to apply extra-territorially. That case involved a conspiracy to smuggle amphetamine tablets into the United States in violation of section 545 and the general conspiracy statute, 18 U.S.C. § 371. The court found that even though the alleged" }, { "docid": "16804607", "title": "", "text": "S.Ct. 1646, 52 L.Ed.2d 357 (1977). Courts look to congressional intent, express or implied, to determine whether a given statute should have extraterritorial application. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922); Chua Han Mow, 730 F.2d at 1311. Moreover, courts generally look to international law principles to ensure that an extraterritorial application of United States laws is “reasonable.” Id. B. Congressional Intent Felix was charged as an accessory after the fact for assisting Caro-Quintero in eluding law enforcement agents following Caro-Quintero’s participation in the kidnapping and murder of a DEA agent. The statute under which Felix was charged does not expressly provide for extraterritorial application. However, we will infer congressional intent to provide for extraterritorial jurisdiction for crimes that are not dependent on the locality in which they were committed “but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated ...” Bowman, 260 U.S. at 98, 43 S.Ct. at 41. For such crimes, limiting jurisdiction to the territorial bounds of the United States would greatly curtail the scope and usefulness of the penal statutes. Id. Thus, “ ‘[t]he exercise of [extraterritorial power] may be inferred from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.’ ” United States v. Thomas 893 F.2d 1066, 1068 (9th Cir.1990) (quoting United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980)). 18 U.S.C. § 3 provides that a person is an accessory after the fact if he receives, relieves, comforts or assists someone he knows has committed an offense against the United States. Conduct outside the territorial bounds of the United States can be an offense against the United States only if a United States law reaches that conduct. Here, we must examine two questions: (1) whether the underlying crime, Caro-Quintero’s participation in the kidnapping and murder of a DEA agent, is subject to extraterritorial application; and (2) whether assisting someone who has committed the underlying crime in avoiding apprehension; trial, or punishment is subject to such treatment." }, { "docid": "422586", "title": "", "text": "extraterritoriality and defined it too narrowly. A statute may not indicate, on its face, a congressional intent to be given extraterritorial application. But such intent can be \"readily implied\" from the nature of the offense targeted by the statute and if to deny extraterritorial application \"would be greatly to curtail the scope and usefulness of the statute!].” Wright-Barker, 784 F.2d at 167 (citations and internal quotation marks omitted); see also Vasquez-Velasco, 15 F.3d at 839 (citing Felix-Gutierrez, 940 F.2d at 1204); Baker, 609 F.2d at 136. . 216 F.3d at 211 n. 5. Interestingly, although the majority relies on footnote five in the Gatlin opinion to support its narrow reading of the Bowman language, the Second Circuit itself rejected such a narrow reading in an earlier opinion. Citing Baker, 609 F.2d at 139, the Second Circuit held that the “intent to cause effects within the United States ... makes it reasonable to apply to persons outside United States territory a statute which is not expressly extraterritorial in scope.” United States v. Orozco-Prada, 732 F.2d 1076, 1087-88 (2d Cir.1984)(internal quotation marks omitted). . See Vasquez-Velasco, 15 F.3d at 843 (concluding that the statute applies extraterritorially to defendant’s act of murdering both a U.S. citizen and a legal resident alien of the U.S. in Mexico to further a drug trafficking enterprise); United States v. Thomas, 893 F.2d 1066, 1068-70 (9th Cir. 1990)(holding that 18 U.S.C. § 2251(a) applied extraterritorially to defendant's acts in Mexico of engaging a minor in sexually explicit conduct for the purpose of creating a visual depiction of that conduct, mailing visual depictions of the conduct, and receiving the material); Baker, 609 F.2d at 136-39 (concluding that the statute proscribing the possession of narcotics with the intent to distribute applies extraterritorially to possession beyond the three-mile limit of the \"territorial sea”); United States v. Harvey, 2 F.3d 1318, 1327-30 (3d Cir.1993)(holding that sentencing guideline addressing the offense of causing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct applies when the offense occurs in the Philippines). See also United States" }, { "docid": "422513", "title": "", "text": "of the Government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. Bowman, 260 U.S. at 98, 43 S.Ct. 39. We have previously characterized Bowman as drawing a distinction between: (1) statutes punishing crimes against the peace and good order of the community (which apply only to [acts] committed within the territorial jurisdiction of the United States unless Congress had specifically directed otherwise); and (2) statutes punishing fraud or obstructions against the United States Government (which include by implication acts which were committed in foreign countries). United States v. Gladue, 4 M.J. 1, 5 (C.M.A. 1977). The principles articulated by the Supreme Court in Aramco and Bowman can be harmonized to provide the following analytical framework for assessing whether the CPPA was intended to have extraterritorial effect: Unless the CPPA can be viewed as falling within the second category described in Bowman (“criminal statutes which are, as a class, ... enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated,” 260 U.S. at 98, 43 S.Ct. 39), the statute is subject to the presumption against extraterritoriality recognized in both Bowman and Aramco. We do not believe that the CPPA can be viewed as a “second category” offense under Bowman and thus exempt from application of the presumption against extraterritoriality. The ultimate objective behind the criminal proscription of activities pertaining to child pornography is to protect children from abuse. Free Speech Coalition, 535 U.S. at 245, 122 S.Ct. 1389. While few crimes are more serious or morally repugnant, child abuse does not involve “fraud” or “obstruction”" }, { "docid": "3481267", "title": "", "text": "and context of the statute as a whole. See Felix-Gutierrez, 940 F.2d at 1204 (noting that congressional intent that penal statute apply extraterritorially may be express or implied); see also Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2883, 177 L.Ed.2d 535 (2010) (in determining whether statute is intended to apply extraterritorially, court may consult context of the statute). Particularly for criminal statutes, courts may infer Congress’s intent that a statute apply extraterritorially “from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” Thomas, 893 F.2d at 1068 (quoting United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980)) (internal quotation mark omitted). a. 18 U.S.C. § 2251(a) In Thomas, the Ninth Circuit held that 18 U.S.C. § 2251(a) applies to acts committed outside the United States. 893 F.2d at 1069. Although § 2251(a) does not explicitly state that it applies to extraterritorial conduct, the Ninth Circuit inferred that this was Congress’s intent because “Congress has created a comprehensive statutory scheme to eradicate sexual exploitation of children.” Id. at 1068. Section 2251(a) is “part of that scheme,” and “[p]unishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably be expected to be transported in interstate or foreign commerce is an important enforcement tool.” Id. at 1068-69 (footnote omitted) (emphasis added). The Ninth Circuit has since reaffirmed this holding in a memorandum opinion. United States v. Nelson, 61 F.3d 914, 1995 WL 433960, at *1 (9th Cir. July 21, 1995) (“[S]ection 2251(a) applies to acts whether or not committed in the United States.”). McVicker argues that § 2251(a) does not explicitly apply to extraterritorial conduct. He acknowledges the Supreme Court’s holding in Bowman that Congress need not expressly state its intent for criminal statutes to apply extraterritorially when the statutes “are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own" }, { "docid": "11198455", "title": "", "text": "allows it to be inferred from the nature of the offense. Id. (quoting Bowman, 260 U.S. at 98, 43 S.Ct. 39); see also United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980) (“Absent an express intention on the face of the statutes to do so, the exercise of [extraterritorial jurisdiction] may be inferred from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.”). However, “if the nature of the law does not mandate its territorial application, then a presumption arises against such application.” Mitchell, 553 F.2d at 1001 (citing Bowman, 260 U.S. at 98, 43 S.Ct. 39). “To overcome that presumption and to apply the statute beyond the territory of the United States, the Government must show a clear expression of congressional intent.” Id. (citations omitted); see also Boureslan v. Aramco, 857 F.2d 1014, 1016 (5th Cir.1988) (recognizing a presumption against the extraterritorial application of statutes absent Congressional intent); Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1168 (5th Cir.1982). A plain reading of § 2423 demonstrates that it is designed to have extraterritorial application. First, all three operative subsections (under which Defendant is charged) refer to a defendant’s travel in “foreign commerce” as a nexus for prohibiting the criminalized behavior. See § 18 U.S.C. § 2423(a)-(c). This term alone evinces Congressional intent for the statute to be applied extraterritorially. See United States v. Montford, 27 F.3d 137, 139-40 (5th Cir.1994) (“Congress intended foreign commerce to mean travel to and from, or at least some form of contact with, a foreign state.”); United States v. Hill, 279 F.3d 731, 739 (9th Cir.2002) (inclusion of a “foreign commerce” provision “strongly suggests that Congress intended to cast a broad net and apply the statute to all offenders, whether or not they are found in the United States.”)- While a strained reading of the statute may support an argument that the statute only criminalizes illicit sexual behavior when a defendant has travelled from outside the country into the United States, nothing in the statute indicates it was designed to punish" }, { "docid": "7318338", "title": "", "text": "properly inferred from the nature of the crime that Congress intended the statutes to apply outside the United States. Id. at 99-100, 43 S.Ct. 39. Federal courts have taken the same approach. See Plummer, 221 F.3d at 1305 (“Congress’s intent to apply [the attempted smuggling] provision extra-territorially may be inferred from the nature of the offense and the problem at which the statute is directed”); Vasquez-Velasco, 15 F.3d at 839 n. 4 (“Limiting the jurisdiction of drug smuggling statutes to activities that occur within the United States would severely undermine their scope and effective operation”); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991) (Congress intended statute punishing kidnapping and murder of DEA agent to apply extraterritorially); Thomas, 893 F.2d at 1069 (holding Congress intended 18 U.S.C. § 2251(a), punishing the creation of child pornography intended to be transported in interstate or foreign commerce, to apply extraterritorially)- Perhaps most significantly, we must also consider the nature of the offense Congress intended to punish. As part of the statutory framework for combating the sexual exploitation of children, Congress sought to prevent the distribution of child pornography in the United States by computer. Considering the nature of crimes involving computers, it does not appear that the necessary locus of such offenses would be limited to the territory of the United States. To the contrary, a person using a computer could transport child pornography into the United States from a foreign country with the touch of a button. To limit the applicability to the territorial jurisdiction “would be to greatly curtail the scope and usefulness of the statute.” Bowman, 260 U.S. at 98, 43 S.Ct. 39. We are not aware of a decision from another court on the extraterritorial application of 18 U.S.C. § 2252A(a)(2)(A). However, the Navy-Marine Court of Criminal Appeals determined that 18 U.S.C. 2252(a)(2), a similar provision of the Protection of Children Against Sexual Exploitation Act, applies ex-traterritorially. United States v. Kolly, 48 M.J. 795, 796-97 (N.M.Ct.Crim.App.1998). The statute in Kolly was a precursor of the provision at issue in this ease, and is almost identical, except that §" }, { "docid": "422558", "title": "", "text": "try the offenders on the high seas, where the crime took place. In response to the absence of an explicit statement of extraterritorial application in that particular criminal statute, the Supreme Court applied and clarified the exception to the presumption against extraterritoriality. The Supreme Court delineated two types of criminal offenses in Bowman. The nature of some criminal offenses, such as those crimes against private individuals or their property which “affect the peace and good order of the community,” is such that the acts that constitute the offenses occur locally. But other criminal offenses “are such that to limit their locus to the strictly territo rial jurisdiction would be greatly to curtail the scope and usefulness of the statute ____” Thus, when Congress does not explicitly state in the plain language of a particular criminal statute that it intends for that statute to apply extraterritorially, courts can infer such intent “from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” I interpret the Bowman language as drawing a dividing line between those criminal offenses that are “domestic” in nature and those whose nature “warrant[s] a broad sweep of power.” For example, a U.S. citizen’s assault on his next-door neighbor would affect the “peace and good order of the community” in his neighborhood and is a domestic crime. The nature of this offense does not warrant a sweep of power any broader than that provided to the local police force to arrest him. However, if a U.S. citizen commits a criminal offense whose effects are not confined to one particular situs — for example, smuggling illegal drugs between countries or trafficking in child pornography over the Internet — then, the nature of that offense warrants a broader sweep of power. The majority reads the language in Aramco and Bowman to allow an exception to the presumption only for certain types of criminal statutes — those enacted so that the Government can defend itself against obstruction or fraud. However, I do not read this language as narrowly as the majority. Notably, Bowman was a" }, { "docid": "422514", "title": "", "text": "States v. Gladue, 4 M.J. 1, 5 (C.M.A. 1977). The principles articulated by the Supreme Court in Aramco and Bowman can be harmonized to provide the following analytical framework for assessing whether the CPPA was intended to have extraterritorial effect: Unless the CPPA can be viewed as falling within the second category described in Bowman (“criminal statutes which are, as a class, ... enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated,” 260 U.S. at 98, 43 S.Ct. 39), the statute is subject to the presumption against extraterritoriality recognized in both Bowman and Aramco. We do not believe that the CPPA can be viewed as a “second category” offense under Bowman and thus exempt from application of the presumption against extraterritoriality. The ultimate objective behind the criminal proscription of activities pertaining to child pornography is to protect children from abuse. Free Speech Coalition, 535 U.S. at 245, 122 S.Ct. 1389. While few crimes are more serious or morally repugnant, child abuse does not involve “fraud” or “obstruction” against the United States Government. Rather, child abuse epitomizes that class of “[cjrimes against private individuals [including children]” that “affect the peace and good order of the community” described in the first category of Bowman. 260 U.S. at 98, 43 S.Ct. 39. We are aware of the body of law, primarily from the Ninth Circuit, that does not read the second category in Bowman as limited to crimes against the Government. See, e.g., United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir.1994); United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.1990). Those cases all trace their roots, in one fashion or another, back to United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980), where the Fifth Circuit read Bowman as allowing a court, in the absence of any expression of congressional intent, to “infer” Congress’ intent to provide for extraterritorial application “from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” The Baker court concluded that a federal statute prohibiting drug possession" }, { "docid": "422515", "title": "", "text": "against the United States Government. Rather, child abuse epitomizes that class of “[cjrimes against private individuals [including children]” that “affect the peace and good order of the community” described in the first category of Bowman. 260 U.S. at 98, 43 S.Ct. 39. We are aware of the body of law, primarily from the Ninth Circuit, that does not read the second category in Bowman as limited to crimes against the Government. See, e.g., United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir.1994); United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.1990). Those cases all trace their roots, in one fashion or another, back to United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980), where the Fifth Circuit read Bowman as allowing a court, in the absence of any expression of congressional intent, to “infer” Congress’ intent to provide for extraterritorial application “from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” The Baker court concluded that a federal statute prohibiting drug possession with intent to distribute fell within “the second category described in Bowman” and thus was intended to apply extraterritorially. Id. at 137. The holding in Baker has been subsequently used to support the “inference” of a congressional intent for extraterritorial application in several circumstances that do not involve crimes against the Government, including child pornography-related offenses. See, e.g., United States v. Harvey, 2 F.3d 1318, 1327 (3d Cir.1993)(sentencing guidelines for child pornography offenses); Thomas, 893 F.2d at 1068-69 (production of child pornography under 18 U.S.C. § 2251). We disagree, however, with Baker s expanded view of the “second category” offenses in Bowman. The phrase “inferred from the nature of the offense” in Bowman was clearly cast in reference to the “class” of criminal statutes involving fraud or obstruction against the Government and is not a free standing principle of statutory construction: But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the" }, { "docid": "3481266", "title": "", "text": "question of statutory interpretation. United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.1990); see also United States v. Bowman, 260 U.S. 94, 97, 43 S.Ct. 39, 67 L.Ed. 149 (1922). To determine whether a criminal statute has extraterritorial application, the Court considers two questions: first, it examines “the statute’s text for any indication that Congress intended it to apply extraterritorially,” and second, it examines whether such an application would comply with principles of international law. United States v. Hill, 279 F.3d 731, 739 (9th Cir.2002); see also Bowman, 260 U.S. at 97-98, 43 S.Ct. 39 (“The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations.”). 1. Congressional Intent Congress must “make clear its intent to give extraterritorial effect to its statutes.” United States v. Davis, 905 F.2d 245, 248 (9th Cir.1990). That intent, however, may be implicit in the content and context of the statute as a whole. See Felix-Gutierrez, 940 F.2d at 1204 (noting that congressional intent that penal statute apply extraterritorially may be express or implied); see also Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2883, 177 L.Ed.2d 535 (2010) (in determining whether statute is intended to apply extraterritorially, court may consult context of the statute). Particularly for criminal statutes, courts may infer Congress’s intent that a statute apply extraterritorially “from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” Thomas, 893 F.2d at 1068 (quoting United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980)) (internal quotation mark omitted). a. 18 U.S.C. § 2251(a) In Thomas, the Ninth Circuit held that 18 U.S.C. § 2251(a) applies to acts committed outside the United States. 893 F.2d at 1069. Although § 2251(a) does not explicitly state that it applies to extraterritorial conduct, the Ninth Circuit inferred that this was Congress’s intent because “Congress has created a comprehensive statutory scheme to eradicate" }, { "docid": "14393281", "title": "", "text": "Thus, because § 955 of DAPCA explicitly targets acts of import and export to the United States, § 959(b)(2) should not be read as similarly limited. Ultimately, an analysis of both the statutory language and structure of the statute supports extraterritorial application of the statute. (B) Presumption's Regarding Extraterritoriality “ ‘It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ” United States v. Villanueva, 408 F.3d 193, 197 (5th Cir.2005) (citing Smith v. United States, 507 U.S. 197, 204, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (internal citations omitted)). However, this. presumption can be overcome where extraterritorial application can be “inferred from the nature of the of fenses and Congress’ other legislative efforts to eliminate the type of crime involved.” Id. at 199 (citing United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980)). In United States v. Bowman, the Supreme Court articulated when the presumption against extraterritoriality may be overcome in the context of criminal statutes. 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922). The presumption that Congress intends to limit the jurisdiction of its statutes to the territorial United States “should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents.” Id. (emphasis added). Furthermore, intent to extend jurisdiction, beyond the territorial United States can also be inferred where “to limit [the] locus [of the offense] to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute.” Id. Extraterritorial application of § 959(b) is justified under Bowman. “In the context of drug smuggling laws, this Court has found the necessary congressional intent to overcome the presumption against extraterritorial application,” Villanueva, 408 F.3d at 199, and in evaluating DAP-CA’s statutory framework, this Court has previously commented that Congress intended" }, { "docid": "2449991", "title": "", "text": "§ 963. The conspirators intended to violate the laws of our country by exporting cocaine, a crime under § 953. The conspiracy was not limited to Canada; MacAllister’s coconspirators committed numerous acts in furtherance of the conspiracy within the United States. Federal criminal statutes may properly include extraterritorial effects. United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980). Whether Congress has intended extraterritorial application is a question of statutory interpretation. See Foley Bros. v. Filardo, 336 U.S. 281, 284, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949); United States v. Bowman, 260 U.S. 94, 97, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922). In the present case, we ask whether the “language in [§ 963] ... gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.” Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577. Generally, courts will give extraterritorial effect to penal statutes where congressional intent is clear. See Bowman, 260 U.S. at 98, 43 S.Ct. at 41; United States v. Perez-Herrera, 610 F.2d 289, 290 (5th Cir.1980). MacAllister argues that the language of 21 U.S.C. §§ 963 and 953 does not explicitly provide for extraterritorial application. He is correct; however, Bowman established the rule that Congress need not expressly provide for extraterritorial application of a criminal statute if the nature of the offense is such that it may be inferred. Under this rule, the district court properly concluded that drug smuggling is an offense where extraterritorial application is inferred. “[B]y its very nature [drug smuggling] involves foreign countries, and ... the accomplishment of the crime always requires some action in a foreign country....” Brulay v. United States, 383 F.2d 345, 350 (9th Cir.1967). Logic dictates that Congress would not have passed a drug conspiracy statute that prohibits international drug smuggling activities, while simultaneously undermining the statute by limiting its extraterritorial application. See United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir.1994) (“Limiting the jurisdiction of drug smuggling statutes to activities that occur within the United States" } ]

[ { "docid": "22765256", "title": "", "text": "be flawed because it fails to consider two marked characteristics of a § 3582(c)(2) proceeding ... :(1) this proceeding allows only for downward adjustment and (2) this proceeding is not a full resentencing hearing.”). As applied to this case, § 3582(c) authorized the district court to reduce Starks’s sentence in accordance with the amendments to the drug quantity table for crack cocaine, so long as the reduction was “consistent with applicable policy statements issued by the Sentencing Commission.” The Commission’s policy statement, set forth at USSG § 1B1.10, permitted the district court to determine the amended guideline range that would have applied to Starks if Amendment 706 had been in effect when Starks was sentenced. USSG § lB1.10(b)(l), (c). The policy statement further authorized the court to reduce Starks’s sentence to a term within the amended range, after considering the factors set forth in 18 U.S.C. § 3553(a). See USSG § lB1.10(a)(l). The policy statement, however, also specifies that proceedings under § 3582(c) “do not constitute a full resentencing of the defendant,” id. § 1131.10(a)(3), and includes a statement of “limitations and [prohibition on [ejxtent of [rjeduction,” which directs that the court must not reduce the sentence of a defendant who was originally sentenced within the applicable guideline range to “a term that is less than the minimum of the amended guideline range.” Id § lB1.10(b)(2)(A). This limitation is constitutional and enforceable. Accordingly, the district court correctly determined that it lacked authority to reduce Starks’s sentence to term of less than 130 months’ imprisonment. It was not error for the court to refuse to consider a further reduction based on § 3553(a) or to hold an evi-dentiary hearing for that purpose. For these reasons, the judgment of the district court is affirmed. . The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska. . The court also sentenced Starks to a consecutive term of 60 months’ imprisonment for a violation of 18 U.S.C. § 924(c). That aspect of the original sentence is not at issue in this appeal. . Effective May 1, 2008, Amendment 715 further" } ]

[ { "docid": "22216091", "title": "", "text": "GRUENDER, Circuit Judge. Larry Burrell pled guilty to conspiracy to possess with the intent to distribute cocaine base and powder cocaine, and the district court sentenced him to 168 months’ imprisonment. Three years later, Burrell requested a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). The court granted Burrell’s motion and reduced his sentence to 151 months’ imprisonment. On appeal, Burrell argues that the court erred by failing to reduce his sentence further within the amended guidelines range and by failing to explain its decision. For the following reasons, we vacate and remand. I. BACKGROUND In August 2006, Burrell pled guilty to conspiracy to possess with the intent to distribute cocaine base and powder cocaine, in violation of 21 U.S.C. §§ 841 and 846. The district court found that Burrell’s total offense level was 33 and that his criminal history category was II, which resulted in an advisory guidelines range of 151 to 188 months’ imprisonment. The court sentenced Burrell to 168 months’ imprisonment, a sentence near the middle of his advisory guidelines range. The United States Sentencing Commission subsequently revised the drug quantity table in U.S.S.G. § 2D1.1 and retroactively reduced by two levels the base offense level applicable to the quantity of cocaine base for which Burrell was accountable. See United States v. Starks, 551 F.3d 839, 840 (8th Cir.), cert. denied, 556 U.S. -, 129 S.Ct. 2746, 174 L.Ed.2d 257 (2009). While a federal court generally “may not modify a term of imprisonment once it has been imposed,” § 3582(c)(2) provides an exception to that rule “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Dillon v. United States, 560 U.S. -, 130 S.Ct. 2683, 2687, 177 L.Ed.2d 271 (2010) (quoting § 3582(c)). In February 2009, Burrell filed a motion to reduce his sentence under § 3582(c)(2). The motion described Burrell’s initial sentence and then simply stated: Pursuant to the new sentencing guidelines, Mr. Burrell’s total offense level is 31. With a criminal history category" }, { "docid": "22167618", "title": "", "text": "in criminal history category III. With an offense level of 40, her guideline sentencing range would have remained 360 months to life. U.S.S.G. Chapter 5, Part A. Because Ms. Ivy received the minimum sentence in this range, the government contends the district court’s error was necessarily harmless. According to Ms. Ivy, the government’s contention is fatally flawed. The Sentencing Commission amended the drug quantity table, U.S.S.G. § 2Dl.l(c), effective November 1, 1994. U.S.S.GApp. C, amend. 505. The Sentencing Commission later issued a policy statement indicating this amendment to U.S.S.G. § 2Dl.l(c) applies retroactively to all defendants currently serving terms of imprisonment. U.S.S.G. § lB1.10(a, c); U.S.S.GApp. C, amend. 536 (November 1, 1995). The district court found that 20 kilograms of crack cocaine were attributable to Ms. Ivy for sentencing purposes, and she does not challenge this finding. This quantity of crack cocaine yielded a base offense level of 42 under the November 1, 1993, version of U.S.S.G. § 2Dl.l(c). After subtracting the two-point reduction for minor participation, U.S.S.G. § 3B1.2(b), Ms. Ivy’s total offense level was 40. Under the amended version of U.S.S.G. § 2Dl.l(e), Ms. Ivy’s base offense level would be only 38. After subtracting the two-point reduction for minor participation, her total offense level would be 36. The district court has discretion to reduce Ms. Ivy’s base offense level from 40 to 38, either on its own motion or upon a motion by Ms. Ivy, provided such reduction is warranted in light of the factors listed in 18 U.S.C. § 3553(a). 18 U.S.C. § 3582(c)(2); U.S.S.G. § lB1.10(a); see United States v. Telman, 28 F.3d 94, 96 (10th Cir.1994) (sentence reduction under 18 U.S.C. § 3582(c)(2) “is not mandatory but is committed to the sound discretion of the trial court,” but trial court must consider relevant factors listed in 18 U.S.C. § 3553(a)); United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (district court’s discretion to reduce sentence under 18 U.S.C. § 3582(c)(2) “tethered to the factors contained in § 3553(a)”); see also U.S.S.G. § 1B1.10(b); United States v. Mueller, 27 F.3d 494, 496 (10th Cir.1994) (in" }, { "docid": "22372890", "title": "", "text": "OPINION OF THE COURT ALDISERT, Circuit Judge. The Appellants, John and Jane Doe, appeal the Eastern District of Pennsylvania’s denial of their 18 U.S.C. § 3582(c)(2) motions for reduction of sentence. On February 1, 2007, both Appellants pled guilty to conspiracy to distribute, and distribution of, crack cocaine. The Appellants were granted significant substantial-assistance departures below both their statutorily required mínimums and below their pre-amendment Guideline ranges. After the United States Sentencing Commission passed Amendment 706, which lowered the U.S.S.G. § 2D1.1 base offense levels for most quantities of crack cocaine by two levels, the Appellants moved the District Court to further reduce their sentences. The District Court denied their motions. On appeal, the Appellants argue that the District Court erred in denying their motions because: 1) they were sentenced to a term of imprisonment that was, at least in part, based on a sentencing range that has subsequently been lowered; 2) the applicable policy statement, found at U.S.S.G. § 1B1.10, is in conflict with the plain text of § 3582(c)(2); 3) the District Court misconstrued U.S.S.G. § 1B1.10; 4) U.S.S.G. § 1B1.10 is merely advisory after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and 5) the District Court failed to weigh the equities and consider the rule of lenity in its decision. We will affirm. I. John and Jane Doe each pled guilty to one count of conspiracy to distribute crack cocaine (21 U.S.C. § 846) and one count of distribution of crack cocaine (21 U.S.C. § 841(a)(1)), and entered into cooperation plea agreements with the government. John Doe’s U.S.S.G. § 2D1.1 base offense level for these convictions was 34. He received a two-level increase for his role in the offense, and a three-level reduction for acceptance of responsibility, resulting in a total adjusted offense level of 33. His criminal history was category II. Ac cordingly, this produced a Guidelines sentencing range of 151-188 months of imprisonment. John Doe, however, was also subject to a statutory mandatory minimum sentence of life in prison because of prior drug convictions. As the mandatory minimum" }, { "docid": "17430794", "title": "", "text": "under a mandatory guideline system, his case was remanded to the district court for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Anderson, 155 Fed.Appx. 244, 245 (8th Cir.2005) (per curiam). The district court resentenced him to 185 months, varying downward due to Anderson’s attempts to turn his life around while in prison. This resulted in a sentence approximately 29% below the bottom of the guideline range. In 2007 the Sentencing Commission reduced the base offense levels for crack cocaine offenses, and these changes were made retroactive in 2008. See U.S.S.G. App’x C (Nov. 2011) amends. 706, 713. Anderson moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), which provides the district court with discretionary authority to reduce a defendant’s term of imprisonment if the original sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Anderson’s amended guideline range was determined to be 210 to 262 months. The district court granted the motion and reduced Anderson’s sentence 29% below the bottom of his amended guideline range, the same percentage he had received earlier as a result of a downward departure and variance. This led to imposition of a 148 month sentence. After passage of the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372, the Commission again reduced the base offense levels for crack cocaine offenses and made its changes retroactive. See U.S.S.G. App’x C (Nov. 2011) amends. 750, 759. It also made changes to U.S.S.G. § 1B1.10, the policy statement governing motions for sentence reductions under § 3582(c)(2). Prior to the November 2011 version of the guideline manual, § 1B1.10 provided that a district court could reduce a sentence below the amended guideline range if the defendant had originally received a below guideline sentence. U.S.S.G. § lB1.10(b)(2)(B) (2010). Any reduction below the amended guideline range was to be “comparable]” to the amount that the original sentence fell below the" }, { "docid": "15330367", "title": "", "text": "91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which held that courts may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses in determining whether to vary from a guidelines range. Both of these arguments ignore the statutory text. Again, § 3582(c)(2) authorizes a court to modify a sentence only for a defendant who was sentenced based on a “sentencing range” that has subsequently been lowered. Even if Tepper were correct that the reduction in the crack guideline would lead to lowering his ultimate sentence, that would not be because his original sentencing range was lowered. Rather, under his first argument it would be because the district court decided to depart from that range, and under the second it would be because the court decided, post -Booker, to vary from that now advisory range. But the bigger problem for both arguments is yet another Supreme Court decision, Dillon v. United States, which the Court handed down after Tepper sub- mitted his briefs in this case. — U.S. —, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). In Dillon, the Court held that “[e]ourts generally may ‘not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) ... to a term that is less than the minimum of the amended guideline range.’ ” Id. at 2691 (quoting U.S.S.G. § 1B1.10(b)(2)(A)). That is, in § 3582(c)(2) proceedings, courts generally may neither “depart from the amended Guidelines range,” id. at 2693, nor “vary from” that range on the basis of Booker or Kimbrough, id. at 2690; see id. at 2691-93. 4. For the foregoing reasons, we conclude that § 3582(c)(2) does not authorize a district court to reduce a career offender’s term of imprisonment based on the Sentencing Commission’s amendments to the crack cocaine guidelines. In so holding, we join every court of appeals that has addressed the question. See Caraballo, 552 F.3d at 11 (1st Cir.2008); United States v. Martinez, 572 F.3d 82, 85 (2d Cir.2009); United States v. Mateo, 560 F.3d 152, 153 (3d Cir.2009); United States v. Tyler, 301 Fed.Appx. 265, 266 (4th Cir.2008); United States" }, { "docid": "17430793", "title": "", "text": "MURPHY, Circuit Judge. While serving a sentence of 148 months for conspiracy to distribute crack cocaine, Leo Anderson moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the sentencing guidelines. He sought a sentence 29% below the bottom of his amended guideline range of 168 to 210 months. The district court granted a reduction approximately 20% below the amended guideline range to comply with U.S.S.G. § 1B1.10, the Sentencing Commission’s policy statement governing the sentence reduction process. Anderson appeals, arguing that § 1B1.10 is contrary to the Sentencing Reform Act and unconstitutional. We affirm. I. Anderson pled guilty in 2004 to conspiracy to distribute at least 50 grams of crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846. His guideline range was 262 to 327 months imprisonment, but the government moved for a downward departure based on Anderson’s substantial assistance. See U.S.S.G. § 5K1.1. The district court granted the motion and sentenced him to 210 months, 20% below the bottom of his guideline range. Because Anderson had been sentenced under a mandatory guideline system, his case was remanded to the district court for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Anderson, 155 Fed.Appx. 244, 245 (8th Cir.2005) (per curiam). The district court resentenced him to 185 months, varying downward due to Anderson’s attempts to turn his life around while in prison. This resulted in a sentence approximately 29% below the bottom of the guideline range. In 2007 the Sentencing Commission reduced the base offense levels for crack cocaine offenses, and these changes were made retroactive in 2008. See U.S.S.G. App’x C (Nov. 2011) amends. 706, 713. Anderson moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), which provides the district court with discretionary authority to reduce a defendant’s term of imprisonment if the original sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Anderson’s amended" }, { "docid": "23079338", "title": "", "text": "must be “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The policy statement governing section 3582(c)(2) proceedings provides that a reduction in the defendant’s term of imprisonment is not authorized if an “amendment listed in subsection (c) does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Although Amendment 706 lowered the offense level for most crack cocaine offenses, it did not lower Watkins’s applicable Guidelines range. Watkins’s base offense level was originally forty, then thirty-eight after Amendment 505. Before Amendment 706, the Guidelines assigned offense level thirty-eight to any quantity of cocaine base 1.5 kilograms or more. After Amendment 706, the Guidelines apply level thirty-six to a quantity of 1.5 to 4.5 kilograms cocaine base, and level thirty-eight to a quantity of 4.5 kilograms or more. Watkins was held responsible for over seven kilograms of cocaine base. Thus, his offense level continues to be thirty-eight after Amendment 706. With his enhancements, Watkins’s adjusted offense level remains at forty-two, and his Guidelines range remains at 30 years to life. Because Amendment 706 did not lower Watkins’s Guidelines range, a reduction in his term of imprisonment is not consistent with the Sentencing Commission policy statement. Id. Thus, the district court correctly held that Watkins is ineligible for a sentence reduction under section 3582(c)(2). The bulk of Watkins’s brief is devoted to his argument that permitting a sentence reduction under section 3582(c)(2) only when the requirements of section 1B1.10 are met treats the Guidelines as mandatory in violation of Booker, 543 U.S. 220, 125 S.Ct. 738. The Supreme Court, however, has recently foreclosed this argument. In Dillon, the Supreme Court held that “[gjiven the limited scope and purpose of § 3582(c)(2), ... proceedings under that section do not implicate the interests identified in Booker.” Dillon, 130 S.Ct. at 2692. Therefore, the Sentencing Commission’s policy statements are mandatory in the sentence-modification context. See United States v. Hameed, 614 F.3d 259, 265 (6th Cir.2010). Thus, the district court correctly held that because the requirements of section 1B1.10 were not met in this case," }, { "docid": "22702510", "title": "", "text": "U.S.C. § 3582(c)(2) (emphasis added). That subsection is part of a larger provision that denies district courts generally any authority to modify a term of imprisonment “once it has been imposed.” 18 U.S.C. § 3582(c). Thus, subsection (c)(2) provides a court exceptional authority to reduce a sentence. It also provides that any such reduction of a sentence must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The applicable policy statement issued by the Sentencing Commission, implementing § 3852(c)(2), provides that a sentence reduction under § 3582(c)(2) “is not authorized” if the amendment to the Sentencing Guidelines “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The Sentencing Guidelines also provide specific instructions for a court when “determining whether, and to what extent, a reduction in the defendant’s term of imprisonment ... is warranted.” U.S.S.G. § 1B1.10(b)(1). They instruct that “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment ] ... had been in effect at the time the defendant was sentenced ... substituting] only the amendment ] ... for the corresponding guideline provision[] that [was] applied” and “leav[ing] all other guideline application decisions unaffected.” Id. Amendment 706, which was made effective November 1, 2007, and retroactive effective March 3, 2008, amended § 2D1.1 of the Sentencing Guidelines by reducing the offense levels associated with crack cocaine quantities by two levels. See U.S.S.G. supp. to app. C, amend. 706 (Nov. 1, 2007); id. amend. 713 (May 1, 2008); U.S.S.G. § 2D1.1; U.S.S.G. § lB1.10(c). Amendment 706, by lowering a sentencing range with retroactive application, now enables a defendant to seek a reduced sentence through a motion filed under 18 U.S.C. § 3582(c)(2). To be the basis of a reduction under § 3582(c)(2), however, Amendment 706 must have “the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2)(B) (emphasis added). A Hood contends that the district court erred in denying his § 3582(c)(2) motion because, even though he was subject to a mandatory minimum sentence of 240 months’ imprisonment, the" }, { "docid": "22536540", "title": "", "text": "PER CURIAM: Gregory R. Berry, a federal prisoner convicted of a crack cocaine offense, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on Amendment 750 to the Sentencing Guidelines, which revised the crack cocaine quantity tables in U.S.S.G. § 2D1.1. See U.S.S.G. App. C, amend. 750 (Nov. 2011). After review, we affirm. Under § 3582(c)(2), a district court may reduce the prison sentence of a “defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). The grounds upon which a district court may reduce a defendant’s sentence pursuant to § 3582(c)(2) are quite narrow. United States v. Armstrong, 347 F.3d 905, 909 (11th Cir.2003). The Sentencing Commission must have amended the Sentencing Guidelines, pursuant to 28 U.S.C. § 994(o), that guidelines amendment must have lowered the defendant’s sentencing range, and it must also be one that is listed in U.S.S.G. § lB1.10(c). See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & cmt. n. 1(A); see also Armstrong, 347 F.3d at 909. Furthermore, “[w]here a retroactively applicable guideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.2008); see also U.S.S.G. § lB1.10(a)(2)(B). In other words, a reduction is not authorized if the amendment does not actually lower a defendant’s applicable guidelines range “because of the operation of another guideline or statutory provision,” such as a statutory mandatory minimum prison term. U.S.S.G. § 1B1.10 cmt. n. 1(A). For this reason, when a defendant’s guidelines sentence of life was based on the statutory mandatory minimum in 21 U.S.C. § 841(b)(1)(A), Amendment 750 does not lower that guidelines sentence, and the defendant is not eligible for a § 3582(c)(2) sentence reduction. See United States v. Glover, 686 F.3d 1203, 1207-08 (11th Cir.2012). Here, the" }, { "docid": "12026096", "title": "", "text": "PER CURIAM. The government appeals the district court’s order granting Herman Sean Baylor’s motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706 to the U.S. Sentencing Guidelines Manual (“U.S.S.G”), which reduced the base offense levels for certain cocaine base (crack) offenses. We reverse. I Baylor pleaded guilty to possessing five grams or more of crack with the intent to deliver in violation of 21 U.S.C. § 841(a)(1). His initial advisory Guidelines range was seventy-eight to ninety-seven months. However, because this was his second felony drug conviction, he was subject to a statutory mandatory minimum of 120 months. See 21 U.S.C. § 841(b)(1)(B). The government moved to depart downward from the mandatory minimum for substantial assistance under 18 U.S.C. § 3553(e). The district court granted the government’s motion, and sentenced Baylor to ninety months imprisonment. After the passage of Amendment 706, which generally lowered the Guidelines base offense level for crack offenses by two levels, Baylor moved to reduce his sentence to within his allegedly new Guidelines range of sixty-three to seventy-eight months. See 18 U.S.C. § 3582(c)(2). Granting his motion, the district court reduced Baylor’s sentence to seventy-five months imprisonment. The government appealed. II Whether the district court properly determined it had the authority to modify a sentence under 18 U.S.C. § 3582(c)(2) is a legal question reviewed de novo. United States v. White, 305 F.3d 1264, 1267 (11th Cir.2002). A district court does not have the authority to grant a § 3582(c)(2) sentencing ' reduction if the relevant Guidelines amendment does not have the effect of lowering the defendant’s applicable Guidelines range. 18 U.S.C. § 3582(c); U.S.S.G. § 1B1.10(a). Under the Guidelines, “where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5Gl.l(b). Because Baylor’s mandatory minimum sentence of 120 months was greater than the maximum of his original Guidelines range (ninety-seven months), his final original Guidelines “range” was 120 months. See United States v. Jones, 523 F.3d 881, 882 (8th Cir.2008). Amendment 706 did" }, { "docid": "19911389", "title": "", "text": "and the government stipulated to a number of facts supporting Bride’s plea and agreed that the total amount of cocaine base for which Bride was responsible would yield a base offense level of 38 under the 2003 version of the Guidelines. The parties recommended a nineteen-year term of imprisonment and agreed that this sentence would be appropriate both under the Guidelines and under the 18 U.S.C. § 3553(a) sentencing factors. The parties also acknowledged that the district court would determine the applicable advisory Guidelines sentencing range and consider both the Guidelines range and the § 3553(a) factors before imposing a sentence. Bride was sentenced for his crimes on April 14, 2006. After reviewing the Presentence Report, the district court found that Bride’s base offense level was 42, that his criminal history category was II, and that the applicable Guidelines sentencing range was therefore 360 months to life in prison. Nevertheless, after considering the § 3553(a) sentencing factors, the district court accepted the parties’ plea agreement and sentenced Bride to nineteen years in prison, as provided in the plea agreement. On November 1, 2007, the United States Sentencing Commission adopted Amendment 706, which addressed the disparity in sentencing between offenses involving crack cocaine and powder cocaine by reducing the base offense level for crack cocaine offenses by two levels under U.S.S.G. § 2D1.1. The amendment was made retroactive as of March 3, 2008. See U.S.S.G. § lB1.10(c); see also United States v. Leniear, 574 F.3d 668, 673 (9th Cir.2009). As a result, defendants convict ed of crack cocaine offenses may seek sentence reductions under the amended Guidelines pursuant to 18 U.S.C. § 3582(c)(2), which grants district courts the authority to reduce the term of imprisonment of a defendant if the sentence is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.... ” Shortly thereafter, Bride moved the district court to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and the retroactive Guidelines amendments. The district court denied Bride’s motion, holding that it lacked authority to reduce Bride’s sentence under § 3582(c)(2) because Bride’s sentence was" }, { "docid": "19911390", "title": "", "text": "in the plea agreement. On November 1, 2007, the United States Sentencing Commission adopted Amendment 706, which addressed the disparity in sentencing between offenses involving crack cocaine and powder cocaine by reducing the base offense level for crack cocaine offenses by two levels under U.S.S.G. § 2D1.1. The amendment was made retroactive as of March 3, 2008. See U.S.S.G. § lB1.10(c); see also United States v. Leniear, 574 F.3d 668, 673 (9th Cir.2009). As a result, defendants convict ed of crack cocaine offenses may seek sentence reductions under the amended Guidelines pursuant to 18 U.S.C. § 3582(c)(2), which grants district courts the authority to reduce the term of imprisonment of a defendant if the sentence is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.... ” Shortly thereafter, Bride moved the district court to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and the retroactive Guidelines amendments. The district court denied Bride’s motion, holding that it lacked authority to reduce Bride’s sentence under § 3582(c)(2) because Bride’s sentence was not based on the Sentencing Guidelines. The district court agreed that there was a nexus between the Guidelines and the plea because “[t]he guidelines define the prosecutor’s bar- — gaining chip— the length of time a defendant faces- — and therefore the guidelines loom to some degree over all plea agreements.” Nevertheless, relying on United States v. PachecoNavarette, 432 F.3d 967, 971 (9th Cir. 2005), the district court concluded that where a sentence is imposed pursuant to Rule 11(c)(1)(C), “once the parties present a plea, the agreed — to sentence may reflect many factors, and a subsequent sentence is necessarily based on the agreement, not the guidelines.” The district court also noted, as additional evidence that Bride’s plea was not based on the Guidelines, that Bride’s sentence was eleven years shorter than the low end of the 360 months-to-life advisory Guidelines range to which he would otherwise have been subject had the court not accepted the plea agreement. STANDARD OF REVIEW We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See United" }, { "docid": "22536541", "title": "", "text": "listed in U.S.S.G. § lB1.10(c). See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & cmt. n. 1(A); see also Armstrong, 347 F.3d at 909. Furthermore, “[w]here a retroactively applicable guideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.2008); see also U.S.S.G. § lB1.10(a)(2)(B). In other words, a reduction is not authorized if the amendment does not actually lower a defendant’s applicable guidelines range “because of the operation of another guideline or statutory provision,” such as a statutory mandatory minimum prison term. U.S.S.G. § 1B1.10 cmt. n. 1(A). For this reason, when a defendant’s guidelines sentence of life was based on the statutory mandatory minimum in 21 U.S.C. § 841(b)(1)(A), Amendment 750 does not lower that guidelines sentence, and the defendant is not eligible for a § 3582(c)(2) sentence reduction. See United States v. Glover, 686 F.3d 1203, 1207-08 (11th Cir.2012). Here, the district court did not err in denying Berry’s § 3582(c)(2) motion. Berry was convicted and sentenced back in 2002. Berry’s offense level of 37 and initial guidelines range of 360 months to life imprisonment were not based on § 2Dl.l’s drug quantity tables, but on Berry’s status as a career offender, pursuant to U.S.S.G. § 4Bl.l(b). More importantly, because Berry had two prior felony drug convictions, Berry was subject to a statutory mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) (2009), and thus his guidelines sentence became life imprisonment. Amendment 750 had no effect on Berry’s initial guidelines range of 360 months to life imprisonment or Berry’s guidelines sentence of life imprisonment, and the district court did not have the authority to grant Berry’s § 3582(c)(2) motion. See Glover, 686 F.3d at 1207-08. Berry argues that he is eligible for a § 3582(c)(2) reduction based on the Fair Sentencing Act (“FSA”), which became effective on August 3, 2010. The FSA lowered the statutory mandatory minimum penalties for crack cocaine offenses in 21 U.S.C. §" }, { "docid": "22068241", "title": "", "text": "October 2, 1998, Hernandez was sentenced to life imprisonment for the conspiracy count. Hernandez later appealed his conviction and sentence. Although he disputed the sufficiency of the evidence against him, he did not dispute the court’s findings with respect to the quantity of cocaine for which the conspiracy was responsible. This court affirmed his conviction on all grounds. United States v. Hernandez, 260 F.3d 621 (5th Cir.2001) (unpublished). Effective November 1, 2007, the United States Sentencing Commission adopted Amendment 706, which retroactively modified the guidelines ranges applicable to crack cocaine offenses to reduce the disparity between crack cocaine and powder cocaine offenses. U.S.S.G. Supp. to App’x C, Amend. 706 (Nov. 1, 2009). While the maximum offense level applied to a finding of 1.5 kg of crack when Hernandez was sentenced, it now applies to a finding of 4.5 kg of crack. The amendment has no applicability to a defendant sentenced for more than 4.5 kg of crack. See United States v. Duncan, 639 F.3d 764, 767 (7th Cir.2011) (recognizing that Amendment 706 affects only defendants who are responsible for distributing less than 4.5 kg of crack). In 2008, Hernandez filed a motion pursuant to § 3582(c)(2) for reduction of his sentence consistent with the revised guidelines. After requesting a response from the United States, the district court rejected Hernandez’s argument. Hernandez then moved in the district court for reconsideration and, nearly simultaneously, appealed to this court. The district court again rejected his claims, holding that the amendments to the sentencing guidelines had no effect on Hernandez’s sentencing offense level and thus on his sentence, because the amount of crack cocaine for which he was responsible was far beyond the 4.5 kg threshold under the amended guidelines. Hernandez now appeals the district court’s decision on reconsideration. II. As the Supreme Court recently has held, the scope of a proceeding under 18 U.S.C. § 3582(c)(2) in cases like this one is extremely limited. Dillon v. United States, — U.S.-, 130 S.Ct. 2683, 2687, 177 L.Ed.2d 271 (2010). It is black-letter law that a federal court generally “may not modify a term of" }, { "docid": "23238516", "title": "", "text": "in Dillon v. United States, to which we have already adverted, makes clear that, regardless of their reasoning, these cases reached the correct outcome. In Dillon, the defendant had been convicted of a crack-cocaine offense. Following an unsuccessful appeal of his initial sentence, he had moved for a sentence reduction pursuant to § 3582(c)(2) based on the same retroactive Guidelines amendment that authorized Bowers’s § 3582(c)(2) motion in this case. 130 S.Ct. at 2689. In his motion, “Dillon asked the [district] court to grant not just the two-level reduction authorized by the [Guidelines] amendment but also a further reduction” to reflect his exemplary post-sentencing conduct. Ibid. The district court reduced his sentence to the low end of the amended Guidelines range but held that it lacked authority to go any lower, citing U.S.S.G. § lB1.10(b)(2)(A), which generally precludes a court from reducing a sentence in a § 3582(c)(2) proceeding “to a term that is less than the minimum of the amended guideline range.... ” Ibid. The Third Circuit affirmed. Before the Supreme Court, Dillon argued that Bookers excision of the portion of the Sentencing Reform Act making the Guidelines mandatory authorized the district court to ignore U.S.S.G. § 1B1.10 and impose a sentence lower than the amended Guidelines minimum. Id. at 2690. The Court disagreed. In relevant part, it reasoned: Given the limited scope and purpose of § 3582(c)(2), we conclude that proceedings under that section do not implicate the interests identified in Booker. Notably, the sentence-modification proceedings authorized by § 3582(c)(2) are not constitutionally compelled. We are aware of no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent Guidelines amendments. Rather, § 3582(c)(2) represents a congressional act of lenity.... Viewed that way, proceedings under § 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt. Taking the original sentence as given, any facts found by a judge at a § 3582(c)(2) proceeding do not serve to increase the prescribed range of punishment; instead, they affect only the judge’s exercise" }, { "docid": "11789715", "title": "", "text": "706 (i.e., 36), the career offender offense level must be applied. See U.S.S.G. § 4Bl.l(b) (“[I]f the offense level for a career offender from the table [in this subsection] is greater than the offense level otherwise applicable, the offense level from the table [in this subsection] shall apply.”) A total offense level of 37, together with a criminal history category of VI, results in a guidelines range of 360 months to life. See U.S.S.G. Ch. 5, Pt. A. This is identical to the range that was applicable at the time of the defendant’s original sentencing. (Id. at 28-29 (emphasis added).) II. Washington appeals, arguing that (1) he was originally sentenced under the drug quantity guideline and, therefore, is eligible for a sentence reduction under section 3582(c)(2) pursuant to Amendment 706, and (2) he is entitled to an evidentiary hearing to present evidence that his sentence should be further reduced pursuant to the section 3553(a) factors. We first consider whether the district court had authority to modify Washington’s sentence under section 3582(c)(2), a question of law we review de novo. See United States v. Tolliver, 570 F.3d 1062, 1065 (8th Cir.2009). Pursuant to section 3582(c)(2), a district court may reduce a defendant’s sentence if it was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “Under 18 U.S.C. § 3582(c)(2), a defendant may be eligible for a sentence reduction if he is currently serving a sentence for a crack cocaine offense and [Amendment 706] has lowered the guideline range under which he was originally sentenced.” United States v. Curry, 584 F.3d 1102, 1103-04 (8th Cir.2009). However, a reduction is not authorized where Amendment 706 “does not have the effect of lowering the defendant’s applicable guideline range.” United States Sentencing Commission, Guidelines Manual, § lB1.10(a)(2)(B) (Nov.2009). The issue presented in this appeal is the applicability of Amendment 706 to a career offender whose original sentence was based on the drug quantity table, not the career offender-guideline. We" }, { "docid": "22409401", "title": "", "text": "thirty-seven months of imprisonment on Count 1 — down from his original range of thirty-seven to forty-six months. Williams now appeals the district court’s amended sentence to us. II. DISCUSSION “We review a district court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.2003). “[W]e review de novo the district court’s legal conclusions regarding the scope of its authority under the Sentencing Guidelines.” United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.2008) (quotation marks omitted). A district court may modify a term of imprisonment in the case of a defendant who was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). This authority is limited to those guideline amendments listed in U.S.S.G. § lB1.10(c) that “have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) (Nov.2008). Amendment 706 is listed in § lB1.10(c). See U.S.S.G.App. C, amend. 713 (Nov.2008). Effective 1 November 2007, Amendment 706 adjusted downward by two levels the base offense level assigned to each threshold quantity of crack cocaine listed in the Drug Quantity Table in U.S.S.G. § 2D1.1. See id. Accordingly, a district court has discretion to reduce the sentence of a defendant whose sentencing range has been lowered by Amendment 706. Any sentencing reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The Sentencing Commission’s policy statements direct that a defendant is not entitled to a full resentencing during § 3582(c)(2) proceedings. U.S.S.G. § lB1.10(a)(3). The Commission’s policy statement further provides that district courts are to determine the amended guideline range that would have been applicable to the defendant if the subsequently amended provision had been in effect at the time the defendant was originally sentenced. U.S.S.G. § 1B1.10(b)(1). This is achieved by substituting the amended provision for the corresponding guideline provision that was applied when the defendant was sentenced, while" }, { "docid": "23079339", "title": "", "text": "at 30 years to life. Because Amendment 706 did not lower Watkins’s Guidelines range, a reduction in his term of imprisonment is not consistent with the Sentencing Commission policy statement. Id. Thus, the district court correctly held that Watkins is ineligible for a sentence reduction under section 3582(c)(2). The bulk of Watkins’s brief is devoted to his argument that permitting a sentence reduction under section 3582(c)(2) only when the requirements of section 1B1.10 are met treats the Guidelines as mandatory in violation of Booker, 543 U.S. 220, 125 S.Ct. 738. The Supreme Court, however, has recently foreclosed this argument. In Dillon, the Supreme Court held that “[gjiven the limited scope and purpose of § 3582(c)(2), ... proceedings under that section do not implicate the interests identified in Booker.” Dillon, 130 S.Ct. at 2692. Therefore, the Sentencing Commission’s policy statements are mandatory in the sentence-modification context. See United States v. Hameed, 614 F.3d 259, 265 (6th Cir.2010). Thus, the district court correctly held that because the requirements of section 1B1.10 were not met in this case, it did not have the authority to permit a sentence reduction under section 3582(c)(2). To the extent that Watkins appeals the denial of the sentence reduction under section 3582(c)(2) on Booker reasonableness grounds, we lack jurisdiction to entertain this argument. See United States v. Bowers, 615 F.3d 715, 717 (6th Cir.2010). Thus, we lack jurisdiction to consider Watkins’s argument that the district court failed to consider disparities that persist between crack and powder cocaine offense sentencing even after Amendment 706. See id. at 723 n. 6. IV. CONCLUSION The district court’s denial of Watkins’s motion for reduced sentence is AFFIRMED." }, { "docid": "11789719", "title": "", "text": "reduction. See 18 U.S.C. § 3582(c)(2); see also USSG § 4B1.1. Next, Washington asserts that he was entitled to an evidentiary hearing to determine whether the section 3553(a) factors warranted a sentence reduction below the applicable Guidelines range. However, as Washington concedes, his argument is foreclosed by this court’s decision in United States v. Starks, 551 F.3d 839 (8th Cir.), cert. denied, — U.S. -, 129 S.Ct. 2746, 174 L.Ed.2d 257 (2009), holding that a district court does not have the authority to reduce a defendant’s sentence to a term below the amended Guidelines range. See id. at 843; see also USSG § lB1.10(a)(3) (specifying that proceedings under section 3582(c) “do not constitute a full resentencing of the defendant”); id. § lB1.10(b)(2)(A) (noting that a court must not reduce the sentence of a defendant who was originally sentenced within his or her applicable Guidelines range to “a term that is less than the minimum of the amended guideline range”). Since submission of this case, the Supreme Court decided Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), plainly holding that “ § 3582(c)(2) does not authorize a sentencing or resentencing proceeding.” Id. at 2690. Therefore, we affirm the district court’s denial of such a hearing. III. For the foregoing reasons, we affirm the judgment of the district court. . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska. . Section 3582(c)(2) provides that “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” . Amendment 706 reduced the base offense level for offenses involving cocaine base by two levels. United States v. Higgins, 584 F.3d 770, 771 (8th Cir.2009). . The § 3553(a) factors include:" }, { "docid": "11789716", "title": "", "text": "we review de novo. See United States v. Tolliver, 570 F.3d 1062, 1065 (8th Cir.2009). Pursuant to section 3582(c)(2), a district court may reduce a defendant’s sentence if it was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “Under 18 U.S.C. § 3582(c)(2), a defendant may be eligible for a sentence reduction if he is currently serving a sentence for a crack cocaine offense and [Amendment 706] has lowered the guideline range under which he was originally sentenced.” United States v. Curry, 584 F.3d 1102, 1103-04 (8th Cir.2009). However, a reduction is not authorized where Amendment 706 “does not have the effect of lowering the defendant’s applicable guideline range.” United States Sentencing Commission, Guidelines Manual, § lB1.10(a)(2)(B) (Nov.2009). The issue presented in this appeal is the applicability of Amendment 706 to a career offender whose original sentence was based on the drug quantity table, not the career offender-guideline. We addressed this issue in United States v. King, 360 Fed.Appx. 714 (8th Cir.2010) (unpublished per curiam). There, King’s base offense level from the drug quantity table was 38. Id. at 715. King also qualified as a career offender, which yielded an offense level of 37. Id. In calculating King’s advisory Guidelines range, the district court utilized the higher drug-quantity offense level. Id.; see supra note 7. King was originally sentenced to 292 months imprisonment, the bottom of his Guidelines range, but his sentence was later reduced — by approximately 33% — to 195 months, via the district court’s grant of the government’s motion to reduce the sentence. King, 360 Fed.Appx. at 715. King later filed a section 3582(c)(2) motion for a sentence reduction in light of Amendment 706. Id. The district court recognized that Amendment 706 reduced King’s base offense level from 38 to 36 but applied the higher career offender offense level of 37, yielding a new Guidelines range of 262 to 327 months imprisonment. Id. After applying a 33% reduction to the bottom" } ]

[ { "docid": "22604496", "title": "", "text": "in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor’s actions through such a demonstration.” Brief for United States 28, n. 9. Justice Blackmun, concurring in the judgment. Like Justice Brennan, I believe that our precedents. mandate the conclusion that “a realistic likelihood of ‘vindictiveness’” arises in this context. Blackledge v. Perry, 417 U. S. 21, 27 (1974). The Assistant United States Attorney responsible for increasing the charges against respondent was aware of the initial charging decision; he had the means available to discourage respondent from electing a jury trial in District Court; he had a substantial stake in dissuading respondent from exercising that option; and he was familiar with, and sensitive to, the institutional interests that favored a trial before the Magistrate. Moreover, I find no support in our prior cases for any distinction between pretrial and post-trial vindictiveness. As I have said before: “Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself.” Bordenkircher v. Hayes, 434 U. S. 357, 368 (1978) (dissenting opinion). And, as Justice Brennan points out, Bordenkircher does not dictate the result here. In fact, in Bordenkircher the Court expressly distinguished and left unresolved cases such as this one, “where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original [charges] had ended with the defendant’s insistence on pleading not guilty.” Id., at 360. The Court’s ruling in Bordenkircher did not depend on a distinction between the pretrial and post-trial settings: rather, the Court declined to apply its prior opinions in Blackledge and North Carolina v. Pearce, 395 U. S. 711 (1969), because those cases involved “the State’s unilateral imposition of a penalty,” rather than “‘the give-and-take negotiation common in plea bargaining.’” 434 U. S., at 362, quoting Parker v. North Carolina, 397 U. S. 790, 809 (1970) (opinion of Brennan, J.)- Here, as in Pearce and Blackledge, the prosecutor unilaterally imposed a penalty in response to respondent’s exercise of a legal right. Adopting the" } ]

[ { "docid": "18589581", "title": "", "text": "This deprivation of due process, he contends, is the result of prosecutorial vindictiveness as described in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and thus his conviction should be reversed. The Supreme Court held in Black-ledge that it is a due process violation for a prosecutor to bring a more serious charge against a defendant who exercises his statutory right of appeal or collaterally attacks his conviction on a lesser charge. Blackledge, supra, 417 U.S. at 27-29, 94 S.Ct. at 2102-03. Actual retaliatory motivation need not exist; the Court’s focus is on whether the possibility of increased punishment posed a realistic likelihood of vindictiveness. Blackledge, supra, 417 U.S. at 27, 94 S.Ct. at 2102. The government argues that since the discussions between Assistant District Attorney Gordon and Oliver’s attorney Alva amounted to plea bargaining, the proscriptions of Blackledge do not apply and Oliver’s due process rights were not violated. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Supreme Court addressed the issue of whether the Blackledge decision applied to the plea bargaining process. The Court determined that no prosecutorial vindictiveness existed and no due process violation occurred in the context of a plea bargain where the defendant is informed of the terms of the deal and is free to accept or reject the offer. Bordenkircher, supra, 434 U.S. at 363, 98 S.Ct. at 667. The Court acknowledged that the guilty plea and the plea bargain \"... are important components of this country’s criminal justice system.” Id. “While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ — and permissible — ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas’.” Id. at 364, 98 S.Ct. at 668, citing Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 1985, 36 L.Ed.2d 714 (1973). Since Oliver’s theory of the case is that he was prosecuted by federal authorities solely because he" }, { "docid": "14360170", "title": "", "text": "a slightly revisionist view of the thrust of Blackledge: The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, 94 S.Ct., at 2101-02. Id. 434 U.S. at 363, 98 S.Ct. at 668. Needless to say, this is perhaps a less-than-faithful account of what Blackledge actually says on the cited pages. In any event, Bordenkircher quite clearly is a decision in the prosecutorial discretion mode. C. Confusion in the Circuits After Bordenkircher, the prosecutorial vindictiveness doctrine was in disarray. Blackledge and Bordenkircher had articulated two distinct guiding principles, always in conflict, with both always present and neither carrying with it any intrinsic limiting precept. Blackledge stood for the right of criminal defendants to be free to exercise legal rights without fear of reprisals through vindictive exercises of prosecutorial discretion. Bordenkircher stood for the pragmatic recognition for the need of prosecutors to have discretion in bringing additional or different charges. The circuit courts had obvious and understandable difficulty in melding the two conflicting goals of Blackledge and Bordenkircher. See generally, Michigan Note, supra, at 200-08. This situation remained unclear until Goodwin. II. GOODWIN TO THE RESCUE A. Reconciling Blackledge and Bordenkircher In United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Supreme Court finally brought coherence to the field by harmonizing the two competing interests of free exercise of legal rights and the need for prosecutorial discretion. Goodwin accomplished this feat not by holding that one interest was of greater virtue than the other, but by recognizing that each interest has an area of primacy. Goodwin articulated a pretrial/posttrial distinction and held that in the pretrial context, the need" }, { "docid": "11479268", "title": "", "text": "don’t ever get mad at anybody for going to trial. I’m basing my decision as to the sentence in this case on what I have done in similar cases in the past, on the evidence that was presented to me here in this courtroom and on the offense, what it was, purely and simply. Absent vindictiveness or the possibility of vindictiveness, more severe sentences imposed following reconviction are constitutionality valid. Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973); Colten v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972); North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656 (1969). Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974), most recently reaffirmed this principle thus: The lesson that emerges from Pearce, Colten and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of “vindictiveness” . . . The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. Blackledge reiterated the holding of Pearce as follows: The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that “since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed. of apprehension of such a retaliatory motivation on the part of the sentencing judge.” 395 U.S. at 725, 89 S.Ct. at 2080. 417 U.S. at 28, 94 S.Ct. at 2102. Where a realistic likelihood of vindictiveness exists, Pearce lays down this requirement: In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial," }, { "docid": "14289537", "title": "", "text": "Court has repeatedly ruled that punishing a person for exercising his legal rights violates the Due Process Clause. Recognizing that the fear of punishment may deter a person from exercising his rights, the Supreme Court has stated that in some circumstances a presumption of unconstitutional vindictiveness arises when prosecutors employ practices that “pose a realistic likelihood of ‘vindictiveness.’-” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). In Blackledge, the Supreme Court held that a presumption of vindictiveness arises when, following a defendant’s exercise of his state law right to a trial de novo after a conviction in a minor court, the prosecutor lodges a superseding indictment increasing the charge from a misdemeanor to a felony. The Supreme Court expressed the concern that in this context, though a prosecutor may have nonvindictive reasons for substituting the more serious charge, the defendant must be free to pursue his statutory right to a trial de novo without the apprehension of facing increased penalties. Id. at 27-28, 94 S.Ct. at 2102. See also Thigpen v. Roberts, 468 U.S. 27, 30, 104 S.Ct. 2916, 2918, 82 L.Ed.2d 23 (1984). Since Blackledge, the Supreme Court has applied the presumption of prosecutorial vindictiveness only to situations in which a prosecutor lodges more severe charges following a defendant’s post-conviction exercise of his right to appeal. See Thigpen v. Roberts, supra. The Court has declined to apply the presumption with regard to the lodging of a superseding indictment following unsuccessful plea bargaining because the “give-and-take” of plea bargaining does not in general reflect a retaliatory motive. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). See also United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (resisting an inflexible presumption of prosecutorial vindictiveness in the pretrial setting). The present case falls in between the Supreme Court’s pretrial/post-conviction dichotomy. The prosecutor lodged the additional charge following declaration of a mistrial. Recognizing the inflexibility of a presumption of vindictiveness and that institutional pressures similar to those identified in Blackledge might operate in the" }, { "docid": "13931306", "title": "", "text": "In addition, Ho-chreiter was given two year concurrent sentences on each of the 34 counts for which he was convicted. The sentences and forfeitures have all been stayed pending this appeal. II DISCUSSION A. Inclusion of the Perjury Count Defendants contend that the government’s inclusion of a perjury count against Hochreiter in the superseding indictment violated their due process rights. They argue that the government added the count only after plea negotiations preceding the second trial ended unsuccessfully, and that these circumstances demonstrate prosecu-torial vindictiveness and require reversal. As support for their claims defendants cite, Thigpen v. Roberts, — U.S. -, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984), Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). These cases all stand for the unassailable principle that the government violates a defendant’s due process rights if it penalizes him in retaliation for his exercise of a legitimate right. Thigpen, Blackledge, and Pearce all dealt with post-conviction attempts by the prosecution to increase charges or penalties after defendants had pursued legitimate appeals or had collaterally attacked their convictions. In those cases the courts presumed that the prosecution retaliated against defendants because they exercised their rights to pursue constitutionally guaranteed remedies. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Supreme Court said that a defendant’s due process rights are not violated when a prosecutor carries out a threat to reindict the defendant on more serious charges if he does not plead guilty to crimes charged. The Court observed that under the original indictment the element of punishment or retaliation found in Pearce and Blackledge are not present in the “give-and-take” of plea bargaining, so long as the accused is free to accept the prosecution’s offer. Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 667. Defendants liken the situation in this case to that in Thigpen, Blackledge, and Pearce by characterizing the increase in severity of the charges as “post-trial” because it came after the first trial. This" }, { "docid": "15335481", "title": "", "text": "of any proof of an improper motive and thus may block a legitimate response to criminal conduct.” Id. at 2488. Since a presumption may produce harsh results for which society ultimately bears the burden, courts must be cautious in adopting it. See Alabama v. Smith, 490 U.S. 794, 797-801, 109 S.Ct. 2201, 2204-05, 104 L.Ed.2d 865 (1989). We will adopt such a presumption only in cases in which a reasonable likelihood of vindictiveness exists. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). Where there is no such reasonable likelihood, the burden is on the defendant to prove actual vindictiveness. See Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424 (1984). The inquiry here is not whether there is a possibility that the defendant might be deterred from exercising a legal right, but whether the situation presents a reasonable likelihood of a danger that the State might be retaliating against the accused for lawfully exercising a right. Goodwin, 102 S.Ct. at 2493. So, for example, when a defendant has successfully attacked his first conviction, the court- may not impose a more severe sentence upon the defendant after a new trial, unless it gives reasons based on objective information for doing so. Pearce, 89 S.Ct. at 2081. And, when a defendant asserts a statutory right to a trial de novo, the State may not substitute a more serious charge for the original one and thereby subject him to a significant increase in the potential period of incarceration. Blackledge, 94 S.Ct. at 2102-03. In these situations, there is a reasonable likelihood of a danger that the State is punishing a defendant for asserting a legal right. To punish a person because he has done what the law plainly allows him to do is a violation of due process; for while an individual may certainly be punished for violating the law he may not be punished for exercising a right. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1982). Esposito contends that when the government" }, { "docid": "22111005", "title": "", "text": "engage in self-vindication”. Id. at 27, 93 S.Ct. 1977. Over the next 11 years, the Court considered prosecutorial vindictiveness several times. See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984). In Bordenkircher, 434 U.S. at 363, 98 S.Ct. 663, the Court summarized its vindictiveness precedents through its first prosecutorial-vindictiveness decision in Blackledge v. Perry: The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, 417 U.S. at 26-28, 94 S.Ct. 2098. Goodwin explained further the reason for the presumption: Both Pearce and Blackledge involved the defendant’s exercise of a procedural right that caused a complete retrial after he had been once tried and convicted. The decisions in these cases reflect a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided. The doctrines of stare decisis, res judicata, the law of the case, and double jeopardy are all based, at least in part, on that deep-seated bias. While none of these doctrines barred the retrials in Pearce and Blackledge, the same institutional pressure that supports them might also subconsciously motivate a vindictive prosecutorial or judicial response to a defendant’s exercise of his right to obtain a retrial of a decided question. 457 U.S. at 376-77,102 S.Ct. 2485 (emphasis added). In these prosecutorial-vindictiveness decisions, the Court articulated the reasonable-likelihood-of-vindictiveness standard in play here. For example, 16 months before our court’s 1975" }, { "docid": "14360169", "title": "", "text": "Blackledge was not intended to provide a remedy for past wrongs. Instead, it was intended to remove any deterrent bar to future defendants contemplating whether to assert a protected right. Blackledge stands squarely in the due process protecting mode. B. Bordenkircher and Prosecutorial Discretion The Supreme Court’s next word on the subject was in the prosecutorial discretion mode. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), held that there was no violation of due process when a prosecutor filed more severe charges after the defendant refused to plead guilty to lesser charges. Bordenkircher did not purport to overrule Black-ledge, but rather chose to emphasize some factors Blackledge mentioned only in passing and to deemphasize some of the key points I just discussed from Blackledge. Thus, in Bordenkircher the Court emphasized the societal interest in plea bargaining and the prosecutor’s need for discretion in charging decisions. As a corollary, the Court placed less emphasis on the need to promote due process. In fact, the Court went so far as to state a slightly revisionist view of the thrust of Blackledge: The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, 94 S.Ct., at 2101-02. Id. 434 U.S. at 363, 98 S.Ct. at 668. Needless to say, this is perhaps a less-than-faithful account of what Blackledge actually says on the cited pages. In any event, Bordenkircher quite clearly is a decision in the prosecutorial discretion mode. C. Confusion in the Circuits After Bordenkircher, the prosecutorial vindictiveness doctrine was in disarray. Blackledge and Bordenkircher had articulated two distinct guiding principles, always in conflict, with both always present and neither carrying with" }, { "docid": "23409750", "title": "", "text": "for review. . United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). There have also been a number of cases in the Fifth Circuit. See United States v. Krezdorn, 693 F.2d 1221 (1982), vacated for en banc reconsideration, No. 81-1404 (5th Cir.Mar. 2, 1983); Frank v. Blackburn, 646 F.2d 873 (5th Cir.) (en banc), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981); United States v. Thomas, 617 F.2d 436 (5th Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980); Cole v. Wainwright, 614 F.2d 67 (5th Cir.1980); Jackson v. Walker, 585 F.2d 139 (5th Cir.1978); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); United States v. McDuffie, 542 F.2d 236 (5th Cir.1976); United States v. Floyd, 519 F.2d 1031 (5th Cir.1975); Burton v. Goodlett, 480 F.2d 983 (5th Cir.1973). . In Thomas, supra note 24, we commented that the Supreme Court’s decision in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), might have signaled a retreat from Pearce and the subsequent cases through Blackledge. 617 F.2d at 438 n. 1. If so, that retreat appears to have ended at least partially with the Supreme Court’s recent ruling in Goodwin. That case laid repeated emphasis on the importance of affording the prosecutor considerable discretion in the pretrial stages of criminal litigation: There is good reason to be cautious before adopting an inflexible presumption of prose-cutorial vindictiveness in a pretrial setting. ... At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins — and certainly by the time a conviction has been obtained — it" }, { "docid": "23314853", "title": "", "text": "legitimate interest in prosecution.” Goodwin, - U.S. at - - -, 102 S.Ct. at 2492. The felony charge against appellee was clearly justified, and the U.S. Attorney’s office properly exercised its discretion and duty to protect society’s interest by increasing the charge against appellee to a felony. We hold that the procedural right exercised here, the not guilty plea at an initial appearance before the magistrate, even though it may present opportunities for vindictiveness, fails to present a realistic likelihood of vindictiveness and fails to trigger the threshold appearance of vindictiveness. Appellee’s assertion that but for the plea of not guilty the U.S. Attorney’s office would not have reviewed appellee’s file and filed the felony indictment is to no avail. A sequence of events is not enough; the likelihood of retaliation is crucial. See Bordenkircher v. Hayes, 434 U.S. at 363, 98 S.Ct. at 667 (“the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a right, . . . but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction”); United States v. Thurnhuber, 572 F.2d 1307, 1310 n.3 (9th Cir. 1977); cf. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (upon retrial following reversal of original conviction second jury unaware of original sentence could impose greater sentence); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (after trial de novo court of general jurisdiction could impose sentence greater than that imposed in inferior trial court because little possibility of personal vindictiveness). See also Goodwin, - U.S. at - - - & n.5, 102 S.Ct. at 2488-92 & n.5 (discussing prior cases); Blackledge, 417 U.S. at 25-27, 94 S.Ct. at 2101 (same). We conclude that the circumstances surrounding appellee’s indictment for felony illegal entry after his plea of not guilty at an initial appearance before the magistrate do not raise a threshold appearance of vindictiveness sufficient to trigger an inquiry into the prosecutor’s actual motives. A" }, { "docid": "3558476", "title": "", "text": "U.S. at 799, 109 S.Ct. at 2204 (quoting Goodwin, 457 U.S. at 373, 102 S.Ct. at 2488). See also Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (due process “is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’ ”). As the Court emphasized in McCullough, “vindictiveness of a sentencing judge is the evil the Court sought to prevent [in Pearce ] rather than simply enlarged sentences after a new trial.... Accordingly, in each case, we look to the need, under the circumstances, to ‘guard against vindictiveness in the resentencing process.’ ” 475 U.S. at 138, 106 S.Ct. at 979 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct. 1977, 1982, 36 L.Ed.2d 714 (1973)). The Court found no need to guard against vindictiveness in Gotten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), where the defendant’s enhanced sentence was imposed by a second court in a two-tier system in which a defendant convicted of a misdemeanor in an inferior court had the right to a trial de novo in a superior court. 407 U.S. at 105-06, 92 S.Ct. at 1954-55. In refusing to apply the Pearce presumption, the Court reasoned that a trial de novo was “not an appeal on the record,” but “represent[ed] a completely fresh determination of guilt of innocence” by a tribunal that was not being “asked to do over what it thought it had already done correctly.” 407 U.S. at 117, 92 S.Ct. at 1960. Similarly, in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Court found the Pearce presumption inapplicable where, after a defendant’s retrial following a successful appeal, a second jury imposed a lengthier sentence than the defendant received from a prior jury. The Court reasoned that a second jury, “unlike a judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication.” 412 U.S. at 27, 93 S.Ct. at 1983." }, { "docid": "14360153", "title": "", "text": "forge the Ruiz border crossing applications. 693 F.2d at 1230. On this assumption, it held that the prosecutor had merely substituted a more serious charge for “the same basic criminal behavior.” It held that the presumption of prosecutorial vindictiveness could only be overcome by proof of circumstances that did not exist at the time of the original indictment. II Prior precedents in the area of judicial and prosecutorial vindictiveness have detailed the prior opinions of the Supreme Court of the United States and this court. To focus the reader’s recall here, it is not necessary to review those holdings in depth. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), held that an increased sentence imposed by a judge on retrial following appeal gives rise to a presumption of vindictiveness, which may unconstitutionally deter a defendant’s due process right to appeal. To free the defendant of any apprehension that such a retaliatory motivation exists, the presumption can only be rebutted by requiring the judge to affirmatively state in the record reasons for his increased sentence based on information concerning objective, identifiable conduct occurring after the original sentence. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), held that a judge’s imposition of an increased fine after appeal and retrial does not give rise to a presumption of vindictiveness when it occurs in the setting of a two-tier trial de novo system applicable to less severe crimes. In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), a jury imposed an increased sentence on retrial. The Court held this action raised no presumption of vindictiveness. The Court reasoned that the second jury had no knowledge of the first sentence and no stake in acting to deter appeals. In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the prosecutor changed a misdemeanor charge to a felony charge after a convicted defendant obtained a trial de novo. The Court held the prosecutor’s action raised a presumption of vindictiveness that could only be rebutted by proof" }, { "docid": "11881588", "title": "", "text": "instructed the jury on character evidence? 8. Whether the district judge, already having instructed the jury on the presumption of innocence at the outset of the trial, was required to repeat this instruction in his charge to the jury? We consider these issues seriatim and affirm. 1. Prosecutorial Vindictiveness The appellant’s claim of prosecutorial vindictiveness is predicated on two decisions of the Supreme Court, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which he claims establish that when the prosecution has occasion to reindict the accused because the accused has exercised some procedural right, the prosecution bears a heavy burden of proving that any increase in the severity of the alleged charges was not motivated by a vindictive motive. United States v. Ruesga-Martinez, 534 F.2d 1367, 1369 (9th Cir. 1976) (footnote omitted). Ruppel contends that his decision to plead not guilty and stand trial on the counts contained in the initial indictment was the exercise of a procedural right — the right to a trial by jury — and that his due process rights were violated when the Government indicted him for additional crimes arising out of the same transactions upon which the first indictment was based. We disagree with the appellant’s reading of Pearce and Blackledge. The exercise of “some procedural right” by a defendant during his prosecution — such as electing to stand trial before a jury — is by itself insufficient to place on the prosecutor the burden of demonstrating the absence of vindictiveness in his subsequent acts. The due process violation in cases such as Pearce and Blackledge does not arise from the possibility that a defendant might be deterred from exercising a procedural right. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). Rather, it stems from the danger that the Government might retaliate “against the accused for [some action] lawfully attacking his conviction.” Id. (Pearce and Blackledge do not apply when a prosecutor carries out a threat to" }, { "docid": "14360154", "title": "", "text": "reasons for his increased sentence based on information concerning objective, identifiable conduct occurring after the original sentence. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), held that a judge’s imposition of an increased fine after appeal and retrial does not give rise to a presumption of vindictiveness when it occurs in the setting of a two-tier trial de novo system applicable to less severe crimes. In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), a jury imposed an increased sentence on retrial. The Court held this action raised no presumption of vindictiveness. The Court reasoned that the second jury had no knowledge of the first sentence and no stake in acting to deter appeals. In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the prosecutor changed a misdemeanor charge to a felony charge after a convicted defendant obtained a trial de novo. The Court held the prosecutor’s action raised a presumption of vindictiveness that could only be rebutted by proof that the felony charge could not have been brought at the outset. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), held that a prosecutor’s action in obtaining added charges when a defendant refused to plead gave rise to no presumption of vindictiveness. The Court observed that the action had occurred before trial and during plea bargain talks. In United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Court held that no presumption of vindictiveness was created when a United States attorney, acting before trial, obtained a felony indictment following the defendant’s refusal to plead guilty to misdemeanor charges. The Court observed that there was the same “opportunity for vindictiveness” as had been present in Colten and Chaffin, which held such opportunity insufficient to justify the imposition of a prophylactic rule. Relying on the following quotation from Blackledge, the Court required the defendant to prove objectively that the prosecutor’s charging decision was motivated by a desire to punish him for pursuing his appellate rights: [T]he" }, { "docid": "865456", "title": "", "text": "Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the defendant appealed a misdemeanor conviction to a trial de novo before a different judge. The Court had no problem with a stiffer sentence on retrial since “[t]he possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two — tier system.” Id. at 116, 92 S.Ct. at 1960. The Court thought that there was little chance of “personal vindictiveness” before a different judge. In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Court considered a situation where the petitioner was recon-victed and resentenced by a different jury after having an initial conviction overturned on appeal. The Court concluded that Pearce was inapplicable because “[t]he potential for such abuse of the sentencing process by the jury is ... de minimis in a properly controlled retrial.” Id. at 26, 93 S.Ct. at 1982. The Court explained that “the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication.” Id. at 27, 93 S.Ct. at 1983. After this, the Court decided Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). There, a defendant was convicted on a misdemeanor assault charge in a state court of limited jurisdiction. The defendant exercised his statutory right to appeal to a trial de novo. The prosecutor responded by bringing a more serious felony assault charge against the defendant. This charge encompassed the same conduct for which the defendant had been charged with a misdemeanor in the lower court. The Supreme Court held that this conduct by the prosecutor violated due process. The Court contrasted Colten and Chaffin by noting that in those cases there was no “realistic likelihood of vindictiveness.” Id. at 27, 94 S.Ct. at 2102. In the case before it, however, the Court concluded that the prosecutor had a “considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court.” Id. This was because “such an appeal" }, { "docid": "213276", "title": "", "text": "stated that: [i]t can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a * * * court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. * * * [“] [I]t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.” Worcester v. Commissioner, 370 F.2d 713, 718 (1 Cir.). See Short v. United States, 120 U.S.App.D.C. 165, 167, 344 F.2d 550, 552. Id. 395 U.S. at 723-724, 89 S.Ct. at 2080. Later in Blackledge, these same principles were applied to prosecutorial conduct. The Court noted: The lesson that emerges from Pearce, Colten, [Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972)] and Chaffin [Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973)] is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of “vindictiveness.” * * The question is whether the opportunities for vindictiveness * * * are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. Blackledge v. Perry, supra 417 U.S. at 27, 94 S.Ct. at 2102. The Court expressly pointed out that the rationale of the Pearce case was the “fear of vindictiveness.” To paraphrase Black-ledge, a person who has pled guilty to an offense is entitled to pursue his right to set aside that plea without apprehension that the prosecutor will retaliate by substituting a more serious charge for the original one, thus, subjecting him to a significantly increased potential of incarceration. Id. at 28, 94 S.Ct. 2098. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), is not inap posite. There, the prosecutor stated before the plea was taken that unless Hayes pled guilty to" }, { "docid": "23240974", "title": "", "text": "continuing bodies and may have little interest in deterring appeals or vindicating a colleague.” . See Colten v. Kentucky, 407 U.S. 104, 108, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). . See North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Colten v. Kentucky, 407 U.S. 104, 116-118, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). This assumption was most clear in Chaffin v. Stynchcombe, 412 U.S. 17, 27, 93 S.Ct. 1977, 1983, 36 L.Ed.2d 714 (1973): “As was true in Colten, the second sentence is not meted out by the same judicial authority whose handling of the prior trial was sufficiently unacceptable to have required a reversal of the conviction. Thus, the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication.” (Emphasis added.) Accord, Blackledge v. Perry, 417 U.S. 21, 26, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (“there was [in Colten ] little possibility that an increased sentence on trial de novo could have been motivated by personal vindictiveness on the part of the sentencing judge”). . See Arechiga v. Texas, 469 F.2d 646, 647 (5th Cir. 1973), corrected sub silentio in United States v. Floyd, 519 F.2d 1031, 1034 & n. 5 (5th Cir. 1975). . The Court of Appeals for the Third Circuit confronted a similar argument in United States v. Hawthorne, 532 F.2d 318 (3d Cir. 1976). There, the Court held that a sentence under which a defendant will not be eligible for parole until one-third of the sentence has been served, was harsher than one under which a defendant would be eligible for parole at any time, The Court ruled that for Pearce purposes, it was irrelevant that — as a factual matter — the Parole Board would probably not grant parole in the latter case until at least one-third of the sentence had been served. See 532 F.2d at 323-24. We decline to rely upon similar speculations here in order to hold that no harsher sentence has been imposed on Hardwick. ." }, { "docid": "23240973", "title": "", "text": "the indictment against Hardwick after he had exercised his rights to remove the prosecution and to enter a special plea of insanity. The judgment of the district court insofar as it refused to grant habeas corpus relief to Hardwick on his conviction for the charges initially brought against him is affirmed. However, the judgment of the court denying habeas corpus relief on the two added charges is vacated and the cause is remanded to the district court for further proceedings not inconsistent with this opinion. AFFIRMED IN PART AND, IN PART, VACATED AND REMANDED. . See State v. Pearce, 266 N.C. 234, 236, 145 S.E.2d 918, 920 (1966) (Judge Williams at first trial); State v. Pearce, 268 N.C. 707, 708, 151 S.E.2d 571, 572 (1966) (Judge McLaughlin at second trial). Justice Marshall drew attention to this fact in his dissenting opinion in Chaffin v. Stynchcombe, 412 U.S. 17, 41 n. 4, 93 S.Ct. 1977, 1990, 36 L.Ed.2d 714 (1973), arguing that the differences between judge and jury sentencing are “institutional, not personal: juries are not continuing bodies and may have little interest in deterring appeals or vindicating a colleague.” . See Colten v. Kentucky, 407 U.S. 104, 108, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). . See North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Colten v. Kentucky, 407 U.S. 104, 116-118, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). This assumption was most clear in Chaffin v. Stynchcombe, 412 U.S. 17, 27, 93 S.Ct. 1977, 1983, 36 L.Ed.2d 714 (1973): “As was true in Colten, the second sentence is not meted out by the same judicial authority whose handling of the prior trial was sufficiently unacceptable to have required a reversal of the conviction. Thus, the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication.” (Emphasis added.) Accord, Blackledge v. Perry, 417 U.S. 21, 26, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (“there was [in Colten ] little possibility that an increased sentence on trial de novo" }, { "docid": "22111004", "title": "", "text": "93 S.Ct. 1977. On retrial before a new judge and jury, defendant received a greater sentence from the jury. Id. Defendant appealed unsuccessfully and then again sought federal habeas relief, claiming his sentence should be presumed vindictive. Id. at 20, 93 S.Ct. 1977. The Court reasoned that the presumption exists to protect against the possibility of vindictiveness; therefore, the circumstances of resentencing must be examined to determine whether they carry such an inherent threat. Id. at 26-27, 93 S.Ct. 1977. If not, there was no reason to apply the presumption. Id. The Court held sentencing by a jury does not carry such a threat of vindictiveness. It reasoned a jury would not {should not) know of the prior sentence; would have no institutional interest in discouraging meritless appeals; and was not the “same judicial authority whose handling of the prior trial was sufficiently unacceptable to have required a reversal of the conviction. Thus, the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication”. Id. at 27, 93 S.Ct. 1977. Over the next 11 years, the Court considered prosecutorial vindictiveness several times. See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984). In Bordenkircher, 434 U.S. at 363, 98 S.Ct. 663, the Court summarized its vindictiveness precedents through its first prosecutorial-vindictiveness decision in Blackledge v. Perry: The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking" }, { "docid": "865465", "title": "", "text": "prosecutor acted in bad faith. IV. The government relies on a statement in the Supreme Court’s later opinion in Bor-denkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), a decision which will be more fully discussed below. In Bor-denkircher the Court stated: The court has emphasized that due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right ... but rather in the danger that the state might be retaliating against the accused for lawfully attacking his conviction. Bordenkircher, supra at 363,98 S.Ct. at 667-68. (emphasis added) From this, the government argues that the sole consideration for a court faced with prosecutorial vindictiveness questions is whether the prosecutor, in fact, acted vindictively. In other words, the government is saying that the alternative due process rationale of Blackledge, halting defendants’ apprehension of vindictiveness, does not survive Bordenkircher. We agree with the government that the mere possibility that prosecutorial or judicial conduct may be vindictive is insufficient to trigger judicial sanctions. It is only where the possibility of vindictiveness is substantial that Pearce-Blackledge sanctions are triggered. The simple fear on the part of a defendant that a prosecutor may be retaliating against him is insufficient, by itself. Put another way, the mere appearance of vindictiveness is not enough to trigger Pearce-Blackledge sanctions. The factual situation must pose a realistic likelihood of vindictiveness. See Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973) (“the court [in Pearce] intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal.”) The due process principle that defendants not be deterred from exercising their rights is a limited one. As the Court explained in Chaffin, many situations present difficult choices for defendants and arguably chill the exercise of a right. By itself, however, defendants’ apprehension does not justify due process protection. Only when there is a situation presenting a probability of vindictiveness does" } ]

[ { "docid": "196818", "title": "", "text": "if he had joined the union. Snelten responded that it was none of his business. Mehrholz told him that he just wanted him to know that there were no hard feelings and that he would probably do the same thing if he were in Snelten’s position. During the second week of December 1975 Mehrholz asked employee Michael Stein if he knew anything about “this union stuff.” Stein replied that he did not. These facts clearly constitute substantial evidence on the record considered as a whole to support the Board’s conclusion that the employer violated § 8(a)(1). Employer interrogation of employees concerning union activities is not per se coercive under § 8(a)(1). Satra Belarus, Inc. v. N.L.R.B., 568 F.2d 545 at 547 (7th Cir. 1978). The proper analysis, however, is whether the interrogation reasonably would have been coercive when viewed and interpreted as the employee must have understood the questioning and its ramifications. N.L.R.B. v. Gogin, 575 F.2d 596 at 600 (7th Cir. 1978). Accordingly, the circumstances of the inter rogations are critical to a determination of whether they violated § 8(a)(1). We have noted several factors that are relevant to such a determination: (1) the background of employer-employee-union relations; (2) the nature of the information sought; (3) the questioner’s identity; (4) the place and method of interrogation; and (5) the truthfulness of the reply. Id. at 600 n.5. See also N.L.R.B. v. Pope Maintenance Corp., 573 F.2d 898, 904 (5th Cir. 1978). Although these factors provide some guidance, they are not exclusive and thus we must consider all relevant circumstances in making our determination. An important characteristic of the interrogations in this case is that they were made without any accompanying explicit explanation for the employer’s interest in the union’s activities. Moreover, to the extent that Mehrholz intimated reasons for the employer’s concern, it was that the employer did not want a union and wanted to know who was behind the organizational drive. Mehrholz’s persistent questioning with respect to the identity of those employees responsible for the initiation of the union’s organizational attempt and those expressing support for the union," } ]

[ { "docid": "12775761", "title": "", "text": "The panel disagreed with the characterization that the unfair practices were “few and isolated,” and, as such, did not warrant a bargaining order. DISCUSSION 1. Findings of Violations of §§ 8(a)(1) and 8(a)(3) The NLRB’s adoption of the Administrative Law Judge’s findings of fact can only be overturned on review if those findings are not supported by substantial evidence on the record considered as a whole. Labor-Management Relations Act, 1947, 29 U.S.C. §§ 160(e) and (f) (1976); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Applying this standard, we accept the Board’s adoption of the conclusions of the Administrative Law Judge that §§ 8(a)(1) and 8(a)(3) were violated by Grandee. The Administrative Law Judge’s finding of coercion in the interrogation of the employees on May 10 and May 19 satisfies three of the five factors of Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964). See NLRB v. Rubin, 424 F.2d 748, 751 (2d Cir. 1970); Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 492 (2d Cir. 1975). Substantial evidence indicates that Aaron Rosenberg was the highest ranking officer in the company, that employees Hill and Diffenbach supplied untruthful answers to the May 10 questioning, and that an atmosphere of hostility prevailed during the interrogation. Furthermore, the interrogation here can be regarded as being more coercive than the questioning proscribed in NLRB v. Solboro Knitting Mills, Inc., 572 F.2d 936, 939-40 (2d Cir. 1978), cert. den. 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). In Solboro the group questioning consisted of one inquiry as to whether the employees wanted the union, which was greeted by silence. By contrast, the questioning on May 19 involved an inquiry into pro-union sentiment and inquiry into the reasons for that sentiment. We find that the Administrative Law Judge’s finding of coercion is supported by the evidence. The promises and grant of a benefit (the wage and health plan offers) were not expressly made dependent upon the employees’ rejection of the Union. Nevertheless, the timing of those offers indicated a coercive purpose and effect. See, e." }, { "docid": "5775318", "title": "", "text": "at the hearing, Berger replied that no reprisals were carried out against him for refusing to identify the card distributors. The relevant consideration, however, is not whether reprisals were actually taken, but whether the employer’s conduct was such as would tend to interfere with the free exercise of employee rights, NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946), or would reasonably induce fear of reprisal. Cf. Peerless of America, Inc., supra. The administrative law judge also found that neither Berger nor Hayes was either informed of any lawful purpose for the interrogation or assured that there would be no reprisal. Although these latter two findings alone would not establish a violation of section 8(a)(1), they are nonetheless important considerations because the absence or presence of such comments is .relevant to an understanding of the “total context of the surrounding circumstances.” As the Sixth Circuit noted in Hughes & Hatcher, Inc. v. NLRB, 393 F.2d 557, 563 (6th Cir. 1968), “In order to determine accurately whether the interrogation would reasonably have been coercive, it must be viewed and interpreted as the employee must have understood the questioning and its ramifications.” The Company also asserts that when dealing with the interrogation charges the Board impermissibly considered the next day’s discharge of Brady and Crabbe. We agree that the interrogation and discharge charges must be considered separately. The Board, however, could permissibly consider the nature of the information sought in relation to subsequent events. Not only did the interrogations appear to be seeking information on which to base later action against individual employees, Bourne, 332 F.2d at 48, but such action was taken the very next day. In sum, we find substantial evidence in the record as a whole to support the Board’s conclusion that the interrogations were violative of section 8(a)(1). B An employer violates sections 8(a)(3) and (1) of the Act if the discharge of an employee is motivated, at least in part, by anti-union considerations. Borek Motor Sales, Inc. v. NLRB, 425 F.2d 677, 680-81 (7th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 45, 27" }, { "docid": "5775317", "title": "", "text": "1108, 1115 (7th Cir. 1973); Blue Flash Express, Inc., 109 N.L.R.B. 591, 593 (1954). The interrogation charge here focuses on the questioning of two employees by supervisory personnel in an attempt to discover the identity of those distributing union authorization cards. The Company argues that regardless of whether the five-factor test developed in Bourne v. NLRB or the more general test ■ stated in Hughes & Hatcher, Inc. v. NLRB is applied, the interrogations were merely innocuous and not coercive conduct. We do not agree. Despite the absence of a history of company hostility and discrimination, and the suggestion that the Company’s attempt to learn the identity of the organizers was for “informational” purposes, we agree with the Board that the questioning of the two employees, Berger and Hayes, was coercive interrogation and a violation of section 8(a)(1). The administrative law judge found that Berger’s refusal to reveal the identity of the distributors was the result of fear of reprisal. The Company attempts to refute that finding by noting that in response to a question at the hearing, Berger replied that no reprisals were carried out against him for refusing to identify the card distributors. The relevant consideration, however, is not whether reprisals were actually taken, but whether the employer’s conduct was such as would tend to interfere with the free exercise of employee rights, NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946), or would reasonably induce fear of reprisal. Cf. Peerless of America, Inc., supra. The administrative law judge also found that neither Berger nor Hayes was either informed of any lawful purpose for the interrogation or assured that there would be no reprisal. Although these latter two findings alone would not establish a violation of section 8(a)(1), they are nonetheless important considerations because the absence or presence of such comments is .relevant to an understanding of the “total context of the surrounding circumstances.” As the Sixth Circuit noted in Hughes & Hatcher, Inc. v. NLRB, 393 F.2d 557, 563 (6th Cir. 1968), “In order to determine accurately whether the interrogation would reasonably have been" }, { "docid": "16645729", "title": "", "text": "in exercising the right of self-organization granted by § 7 of the NLRA, 29 U.S.C. § 157. See NLRB v. Henry Colder Co., 416 F.2d 750, 753 (7th Cir.1969); see also Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 302 (D.C.Cir.1997); see generally Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 685-86, 64 S.Ct. 830, 88 L.Ed. 1007 (1944) (holding that offers of benefits to union supporters that induce them to leave the union violate § 8(a)(1)). We determine whether coercion or interference was present by examining all the relevant facts and circumstances. See NLRB v. Shelby Mem’l Hosp. Ass’n, 1 F.3d 550, 559 (7th Cir.1993). Substantial evidence supports the Board’s position. GLW argues that Anderson was qualified for the position, and that no specific threats or promises were made to him. GLW also repeatedly stresses that no change in Anderson’s working conditions took place after he declined the promotion, and thus its offer cannot be considered coercive. However, the test is not whether interference or coercion actually occurred, but only whether the employer’s action reasonably tended to interfere with or coerce employees in the exercise of their self-organization rights. See Carry Cos. of Ill. v. NLRB, 30 F.3d 922, 934 (7th Cir.1994). The evidence presented to the Board was rather sparse, but it was sufficient under the deferential substantial evidence standard to support the Board’s conclusion that the offer was an attempt to interfere with Anderson’s right to unionize by moving him to a management position. The most important facts are the Board’s uncontested findings that after Anderson declined the promotion the warehouse distribution manager interrogated him and then threatened him with unspecified reprisals. In addition, other evidence buttressed the Board’s position. Anderson was unwilling to talk about any union-related reasons as to why he turned down the offer, which suggests that he felt coerced. See Champion Labs., 99 F.3d at 227. The timing of the offer also supports the Board’s determination. The foreman position had been open for four months, yet GLW waited until soon before the organizing drive, in which Anderson would be a key union" }, { "docid": "6983162", "title": "", "text": "novo. See id. D. Substantial Evidence Multi-Ad argues that the Board’s conclusions are not supported by substantial evidence. Multi-Ad, however, cannot overcome the deferential standard of review that we must afford the Board’s conclusions. Multi-Ad first challenges the Board’s determination that Multi-Ad coer-cively interrogated Mr. Steele on August 16 in violation of § 8(a)(1) of the Act. Whether an employer’s questioning of an employee is coercive depends on the factual context in which the questioning occurs. See NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307, 1313 (7th Cir.1998). The test is not whether coercion actually occurred, but only whether the employee perceived the employer’s actions to be coercive. See Great Lakes Warehouse, 239 F.3d at 890. Factors that ought to be considered in deciding whether a particular inquiry is coercive include the tone, duration, and purpose of the questioning, whether it is repeated, how many workers are involved, the setting, the authority of the person asking the question, and whether the company otherwise had shown hostility to the union. See NLRB v. Champion Labs., Inc., 99 F.3d 223, 227 (7th Cir. 1996). We also consider whether questions about protected activity are accompanied by assurances against reprisal and whether the interrogated worker feels constrained to lie or give noncommittal answers rather than answering truthfully. See id. Substantial evidence supports the Board’s conclusion that management coercively interrogated Mr. Steele on August 16. The closed-door meeting was conducted in a manager’s office by Heathcoat and Ireland, two people who had authority to fire Mr. Steele. The two managers questioned Mr. Steele regarding why he would want to bring a union into the company. See Beverly Cal. Corp., 227 F.3d at 835 (holding that an employer may not probe directly or indirectly into an employee’s reasons for supporting a union). Moreover, Ireland immediately thereafter asked Mr. Steele about his own career advancement and arranged an interview for a maintenance position, even though no such opening existed. The managers did not assure Mr. Steele that reprisals would not be taken against him for his answers, adding to the potentially coercive nature of the inquiry." }, { "docid": "1518003", "title": "", "text": "the Union. See, Landis Tool Co., Division of Litton Industries v. NLRB, 460 F.2d 23, 24-25 (3d Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 237, 34 L.Ed.2d 177 (1972). The Board found that the solicitation of grievances in this case was accompanied by implicit or explicit promises of benefit and was, therefore, violative of § 8(a)(1). . It is a violation of § 8(a)(1) for an employer to interrogate employees about their union sympathies when doing so suggests to the employees that the employer may take action against them because of their pro-union sympathies. See, NLRB v. Clapper’s Manufacturing, Inc., 458 F.2d 414, 417-418 (3d Cir. 1972); NLRB v. S. E. Nichols-Dover, Inc., 414 F.2d 561, 563 (3d Cir. 1969), cert. denied, 397 U.S. 916, 90 S.Ct. 919, 25 L.Ed.2d 96 (1970). In NLRB v. Camco, Inc., 340 F.2d 803, 804-805 n. 6 (5th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965), the court noted that the test is not whether the employees were actually coerced, but whether the questioning tended to be coercive. See, NLRB v. Colonial Knitting Corp., 464 F.2d 949, 951 (3d Cir. 1972); NLRB v. Barney’s Supercenter, Inc., 296 F.2d 91, 94-95 (3d Cir. 1961). . Griffiths testified that these benefits were not conferred to encourage Figard to vote against the Union. The A.L.J.’s credibility finding considered all relevant factors, and he sufficiently explained his credibility resolution. We may not disturb his finding. See, n. 12, supra. As the Supreme Court noted in NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964), the law prohibits employer “conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” . Griffiths denied this statement. The A.L.J.’s credibility findings were properly supported, and we pay deference thereto. See, n. 12, supra. . It is clear that promises of benefit or threats of reprisal to discourage union votes are viola-tive of § 8(a)(1). See, e. g.," }, { "docid": "9821242", "title": "", "text": "outside building); Sturgis Newport Bus. Forms, Inc. v. NLRB, supra, 563 F.2d at 1257 (8 of 46 employees questioned); NLRB v. Birdsall Construction Co., 5 Cir. 1973, 487 F.2d 288, 291 (systematic questioning of employees who were called away from their work); NLRB v. Varo, Inc., supra, 425 F.2d at 298 (high-ranking officer, in his office and with secretary present and taking notes, questioned employees); and NLRB v. Camco, Inc., supra, 340 F.2d at 806-07 (systematic and intensive interrogation) with Mueller Brass Co. v. NLRB, 5 Cir. 1977, 544 F.2d 815, 821 (isolated interrogation when 2 out of 350 employees questioned). Fifth, the employees questioned responded in a candid and bold manner, raising the inference that they did not fear reprisal. Finally, the record is silent as to what purpose, if any, the interrogator had for asking the questions under discussion. Moreover, there is no testimony that any purpose for the questioning was offered the interrogated employees or that these employees were assured that no reprisals would be taken if they supported the union. Although an express statement of purpose as well as an express assurance of no reprisal may be desirable, see NLRB v. Camco, Inc:, supra, 340 F.2d at 804, such warning is not required when it is apparent from the circumstances, such as are present here, that the interrogation is for an innocent purpose and that the questions do not otherwise convey a veiled threat of reprisal. We therefore conclude that there is no substantial evidence that the innocuous and isolated questions asked under the circumstances present here have a tendency to be coercive. Accordingly we deny enforcement of the Board’s order insofar as it is based upon a finding of coercive interrogation. B. Solicitation of Employees to Campaign Against the Union. Employers are entitled to oppose unionization. Sturgis Newport Bus. Forms, Inc. v. NLRB, supra, 563 F.2d at 1257. Section 8(c) of the Act similarly provides that the “expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice . if such expression contains no threat" }, { "docid": "6480257", "title": "", "text": "business justifications and its interference with Williams’s exercise of her section 7 rights. It found that the company’s justifications were pretextual, and its finding is supported by substantial evidence in the record. The ALJ discredited as “not believable” General Draude’s testimony that concerns about building security and overtime pay prompted the interrogation of Williams. The Board reasonably came to the “inescapable” conclusion that the security concern was pretextual “because, from [the company’s] own security records, the [company] already knew the employees who were in the building that evening.” As for overtime pay, the company cites federal regulations precluding an employer from accepting the benefits of an employee’s work without paying for it, 29 C.F.R. §§ 785.11, 785.13 (2004), but the regulations do not authorize an employer to coercively interrogate an employee. Furthermore, the company fails to show that it ever questioned another employee about failing to claim overtime for remaining in the building after a shift, or forced an employee over objection to claim overtime. C. The company’s contention that it could lawfully terminate Williams for lying during the interrogation, even if her discharge was also motivated by retaliation against her for distributing the fliers, is without merit. See Spartan Plastics, 269 N.L.R.B. 546, 552, 1984 WL 36209 (1984). There was substantial evidence in the record to support the Board’s finding that Williams had responded evasively during the interrogation because she feared retaliation against her for engaging in protected concerted activity. The Board was thus warranted in concluding that Williams had no obligation to respond to the questions in any particular manner and that her dishonesty about her protected concerted activity did not constitute a lawful reason to discharge her. See id; Jays Foods, Inc. v. NLRB, 573 F.2d 438, 444 (7th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978). The cases on which the company relies — Aroostook County Regional Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C.Cir.1996), and Earle Industries, Inc. v. NLRB, 75 F.3d 400 (8th Cir.1996) — are inapplicable because they involved employees who violated their employers’ lawful policies. While the" }, { "docid": "10109717", "title": "", "text": "8(a)(3) (and § 8(a)(1)), we will remand for the Board to consider these issues in the first instance. See United Dairy Farmers Coop. Ass’n v. NLRB, 633 F.2d 1054, 1069 (3d Cir.1980). Remand is appropriate because we are requiring the Board to modify its longstanding mode of analysis in order to comply with the Supreme Court’s equally longstanding precedent to the contrary. See United States v. Kikumura, 918 F.2d 1084, 1103 n. 23 (3d Cir.1990), overruled on other grounds by United States v. Fisher, 502 F.3d 293 (3d Cir.2007). B. The Interrogations Section 8(a)(1) of the NLRA also prohibits an employer from coercively interrogating its employees — that is, interrogating them in such a way as to “suggest[ ] to the employees that the employer may take action against them because of them pro-Union sympathies.” Frito-Lay, Inc. v. NLRB, 585 F.2d 62, 65 (3d Cir.1978); see also Graham Architectural Prods. Corp. v. NLRB, 697 F.2d 534, 537 (3d Cir.1983) (“An employer’s questioning becomes coercive and runs afoul of section 8(a)(1) when it ‘suggests to the employees that the employer may take action against them because of their pro-Union sympathies.’” (quoting Frito-Lay, 585 F.2d at 65)). Although “the questioning must reasonably have tended to coerce under the circumstances,” it need not have “actually had any coercive effect.” Graham Architectural, 697 F.2d at 537-38. “Whether an employer’s actions meet that test is a question of fact for the Board and its determinations are conclusive if supported by substantial evidence.” NLRB v. Armcor Indus., Inc., 535 F.2d 239, 242 (3d Cir.1976). As noted above, “substantial evidence” is a “highly deferential” standard of review. United Food & Commercial Workers Union, 506 F.3d at 1083. Here, three interrogations form the basis of the coercive interrogation charge. The participants in these three interrogations were: (1) certified nursing assistant Jeffrey Jimenez and company attorney James Monica; (2) certified nursing assistant Judith Dolcine and Assistant Director of Nursing Ansel Vijayan; and (3) licensed practical nurse Donna Duggar and supervisor Janet Lewis. The ALJ found that each of these interrogations was coercive. He explained that “[t]he applicable test for" }, { "docid": "5998114", "title": "", "text": "that the Center violated section 8(a)(1) of the Act by polling employees regarding their grievances and creating the impression that such grievances would be satisfied. 3. Interrogation of Employees Substantial evidence also supports the Board’s finding that the Center violated section 8(a)(1) by interrogating employees concerning their union activities. Such questioning, though not per se violative of the Act, is prohibited by section 8(a)(1) if accompanied by coercion, threat, or restraint. Coors Container Co. v. NLRB, 628 F.2d 1283, 1289 (10th Cir.1980); Groendyke Transport, Inc. v. NLRB, 530 F.2d 137, 144 (10th Cir.1976). The test is not whether employees were actually coerced, but whether the questioning tended to be coercive. Hedstrom Co., 558 F.2d at 1143 n. 13; NLRB v. Camco, Inc., 340 F.2d 803, 804 n. 6 (5th Cir.1965). A violation is established “if the questions asked, when viewed and interpreted as the employee must have understood the questioning and its ramifications, could reasonably coerce or intimidate the employee with regard to union activities.” NLRB v. Rich’s Precision Foundry, Inc., 667 F.2d 613, 624 (7th Cir.1981). Here the record discloses numerous instances in which the Center’s supervisory personnel interrogated employees • about their union activities. In mid-July of 1979, the Center’s assistant administrator of nursing, Pamela Van Genderen, summoned RN Lauren Hammond to her office to discuss a report that Hammond had solicited other employees regarding representation matters. Van Genderen testified she informed Hammond that the National Labor Relations Act did not permit active solicitation on work time in patient care areas. She advised Hammond that if there were any further incidents, they “would have to talk about it.” Rec., vol. I, at 46. According to Hammond, she told Van Genderen that she was not trying to organize the nurses and Van Genderen replied “I would like to know what you’re trying to talk to them about.” Id. at 357. Hammond also testified that Van Genderen warned her that if she were setting herself up as a representative of the union in an attempt to organize, she might be putting her job in jeopardy. It is undisputed that Hammond" }, { "docid": "16645728", "title": "", "text": "F.3d at 524. A. Uncontested Violations GLW has not contested the Board’s findings that it violated § 8(a)(1) of the NLRA by interrogating Anderson and by making unspecified threats of retaliation when he declined the promotion to foreman. Therefore, we summarily enforce the Board’s order regarding these issues without determining whether substantial evidence supports the Board’s findings. See NLRB v. Champion Labs., Inc., 99 F.3d 223, 227 (7th Cir.1996). These violations do not disappear from the case, but rather remain as evidence that may support the Board’s findings on contested issues. See U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314-15 (7th Cir.1991) (en banc). B. Promotion Offer Section 8(a)(1) of the NLRA prohibits employers from interfering with, restraining or coercing employees in the exercise of their rights to form, join, or assist labor organizations and engage in activities for the purpose of collective bargaining or other mutual aid or protection. 29 U.S.C. § 158(a)(1). Offers of promotion to management positions can violate § 8(a)(1) if these reasonably tend to interfere with or coerce employees in exercising the right of self-organization granted by § 7 of the NLRA, 29 U.S.C. § 157. See NLRB v. Henry Colder Co., 416 F.2d 750, 753 (7th Cir.1969); see also Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 302 (D.C.Cir.1997); see generally Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 685-86, 64 S.Ct. 830, 88 L.Ed. 1007 (1944) (holding that offers of benefits to union supporters that induce them to leave the union violate § 8(a)(1)). We determine whether coercion or interference was present by examining all the relevant facts and circumstances. See NLRB v. Shelby Mem’l Hosp. Ass’n, 1 F.3d 550, 559 (7th Cir.1993). Substantial evidence supports the Board’s position. GLW argues that Anderson was qualified for the position, and that no specific threats or promises were made to him. GLW also repeatedly stresses that no change in Anderson’s working conditions took place after he declined the promotion, and thus its offer cannot be considered coercive. However, the test is not whether interference or coercion actually occurred, but only whether the employer’s" }, { "docid": "7238027", "title": "", "text": "employees in the exercise of their protected § 7 rights. Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080 (9th Cir. 1977). There is no evidence in the record that the company assured Randle and Stephens against reprisal or that Lockyear told them why they were being questioned. See NLRB v. Varo, 425 F.2d 293, 298 (5th Cir. 1970). Moreover, the record supports the finding that the rumors were too speculative to be taken seriously. Ron Boothe, the employee who reported the rumors to Lock-year, testified that he did not believe the rumors. Plant Superintendent Hensley testified that he found the employees unconcerned about the rumors. We find that the administrative law judge properly rejected the company’s position and correctly characterized the interrogations as coercive. Therefore, we affirm the Board’s conclusion that the interrogation of Randle and Stephens violated § 8(a)(1) of the Act. As to Kenneth Hertz’s employment interview, the administrative law judge found that the company used the interview coercively in violation of § 8(a)(1) of the Act to dissuade Hertz from joining the union. Clear Pine now argues that this finding is unsupported by the record and contradicted by the fact that Lockyear did not expressly threaten Hertz during the interview. We disagree. While the testimony of both Hertz and Lockyear was vague, Hertz’s testimony does support the conclusion that Lockyear’s questioning carried with it the clear implication that the answers given by Hertz affected his chances of employment. W. A. Sheaffer Pen Co. v. NLRB, 486 F.2d 180, 182 (8th Cir. 1973); NLRB v. Bighorn Beverage, 614 F.2d 1238, at 1240 (9th Cir. 1980). The administrative law judge credited Hertz’s version of events and since the administrative law judge had the benefit of observing the witness’s demeanor, we can reverse only if a clear pre ponderance of the evidence convinces us that he was incorrect. NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th Cir. 1978). Because we find it reasonable to infer coercion - when a personnel manager urges a prospective employee not to join the union, we affirm the Board’s conclusion that the" }, { "docid": "7190860", "title": "", "text": "the time. Assuming the remark was made as stated, interrogation as to what employees expect to gain from a union is, on its face, uncoercive where unattended by threats of reprisal or promises of reward. Whittaker Knitting Mills, Inc., Div. of Whittaker Corp., 207 NLRB 1019, 1022 [ (1973) ]. Waubiness’ own version of this remark shows he already had declared himself a union supporter by wearing his union button. The above-quoted statement of Redzinski constitutes Waubiness' complete testimony upon the subject allegation. Thus, it is not asserted Redzinski coupled that remark with any explicit or implied threat or promise. In the free flow of discussion about unionization which clearly prevailed in the instant campaign, I do not find Redzinski’s remark unlawful. Bugni claimed that 6 weeks before the election Redzinski spoke to him at his work station. Observing Bugni wore a union button, Redzinski asked what it meant to him or why he was wearing it. Bugni testified he explained, and Redzinski responded he could accept and respect Bugni’s views. That conversation then ended. As with Waubiness, Bugni’s account provides no evidence Redzinski’s comment was attended by any threat or promise. I conclude this conversation is within the purview of the Whittaker case, supra. A three member panel of the Board, with one member dissenting, found these two instances of Redzinski’s questioning coercive. The majority relied on a then recent decision, PPG Industries, Inc., 251 N.L.R.B. 156 (1980), overruling earlier decisions, and finding that a supervisor’s questions regarding union sympathies are coercive because they convey the employer’s displeasure with union activity. Coercive impact was said not to be diminished by the employee’s open union support or by the absence of threats. The majority made no comment on the free flow of candid discussion and the atmosphere of this campaign as emphasized by the ALJ. With all due respect for the Board’s factfinding powers and expertise in these matters, see Sioux Products, Inc. v. N.L.R.B., 684 F.2d 1251 (7th Cir.1982), we do not find substantial evidence in the light of this record to sustain its finding of coercion in these" }, { "docid": "5775316", "title": "", "text": "not be any concern about . . . the fact that cards were being passed out in that these were not permanent employees of [the Company] and in fact, would be leaving.” At quitting time that same day, Braun told Brady and Crabbe that each was being laid off for lack of work. II The Company contends that the Board erred in determining that it committed unfair labor practices both through interrogation and discriminatory discharges of employees. We address these issues separately- A Although interrogation of employees is not per se unlawful, L. C. Cassidy & Sons, Inc. v. NLRB, 415 F.2d 1358, 1361 (7th Cir. 1969); NLRB v. C & P Plaza Dep’t Store, 414 F.2d 1244, 1248 (7th Cir. 1969), cert. denied, 396 U.S. 1058, 90 S.Ct. 756, 24 L.Ed.2d 754 (1970), it need not be explicitly threatening to be coercive within the meaning of section 8(a)(1). If the conduct itself, viewed in context, may reasonably induce fear, it constitutes a violation of the Act. Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1115 (7th Cir. 1973); Blue Flash Express, Inc., 109 N.L.R.B. 591, 593 (1954). The interrogation charge here focuses on the questioning of two employees by supervisory personnel in an attempt to discover the identity of those distributing union authorization cards. The Company argues that regardless of whether the five-factor test developed in Bourne v. NLRB or the more general test ■ stated in Hughes & Hatcher, Inc. v. NLRB is applied, the interrogations were merely innocuous and not coercive conduct. We do not agree. Despite the absence of a history of company hostility and discrimination, and the suggestion that the Company’s attempt to learn the identity of the organizers was for “informational” purposes, we agree with the Board that the questioning of the two employees, Berger and Hayes, was coercive interrogation and a violation of section 8(a)(1). The administrative law judge found that Berger’s refusal to reveal the identity of the distributors was the result of fear of reprisal. The Company attempts to refute that finding by noting that in response to a question" }, { "docid": "6480258", "title": "", "text": "for lying during the interrogation, even if her discharge was also motivated by retaliation against her for distributing the fliers, is without merit. See Spartan Plastics, 269 N.L.R.B. 546, 552, 1984 WL 36209 (1984). There was substantial evidence in the record to support the Board’s finding that Williams had responded evasively during the interrogation because she feared retaliation against her for engaging in protected concerted activity. The Board was thus warranted in concluding that Williams had no obligation to respond to the questions in any particular manner and that her dishonesty about her protected concerted activity did not constitute a lawful reason to discharge her. See id; Jays Foods, Inc. v. NLRB, 573 F.2d 438, 444 (7th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978). The cases on which the company relies — Aroostook County Regional Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C.Cir.1996), and Earle Industries, Inc. v. NLRB, 75 F.3d 400 (8th Cir.1996) — are inapplicable because they involved employees who violated their employers’ lawful policies. While the Eighth Circuit in Earle stated that the Board’s “leeway” for misconduct connected to protected concerted activity was “too blunt an instrument when applied without regard to the situation in which the misconduct took place,” in that case the employee had engaged in “flagrant” misconduct, disrupting operations at the employer’s plant and defying the personnel manager in front of a crowd of employees, in the course of asserting her section 7 rights. Id. at 405, 407; Spartan Plastics, 269 N.L.R.B. at 551. Here, by contrast, Williams’s section 7 activity did not violate any lawful company policy, and the company does not contend her conduct was flagrant. Because there was substantial evidence in the record to show that the company had a single unlawful motive for questioning Williams, the Wright Line analysis is inapplicable. Felix Indus., 331 N.L.R.B. 144, 146, 2000 WL 658032 (2000), rev’d on other grounds, 251 F.3d 1051 (D.C.Cir.2001). Further, the Board reasonably rejected the company’s contention that it would have discharged Williams even if she had not distributed the fliers, because of its" }, { "docid": "3257854", "title": "", "text": "he suspected other employees of being union adherents, but not Purscell. The Administrative Law Judge found that none of these instances of interrogation constituted a § 8(a)(1) violation. He reasoned that the interrogation of Purscell could not have had a coercive effect because Purscell had previously voluntarily revealed his union affiliation to a company foreman. With respect to Cone and Sullivan, the Administrative Law Judge concluded that “such isolated interrogation in a campaign marked by an apparent general willingness of employees to identify themselves openly for the Union cannot suffice ... to support a Section 8(a)(1) finding.” Disagreeing with the conclusions of. the Administrative Law Judge, the Board found that these instances of interrogation were violative of § 8(a)(1). The Board concluded that the purpose and effect of the interrogation of Purscell was to intimidate him in his pursuit of protected union activity. As to Cone and Sullivan, the Board found that the sole purpose for questioning these men was to find out the extent of union support among employees following the first employee union meeting of April 17 and that this interrogation was coercive in nature. In determining whether the Company’s interrogation of these men was unlawfully coercive, several factors should be considered: (1) the history of the Company’s attitude toward its employees; (2) the type of information sought; (3) the rank of the interrogator in the Company hierarchy; (4) the place and manner of the interrogation; and (5) the truthfulness of the employee’s responses. NLRB v. Varo, Inc., 425 F.2d 293, 298 (5th Cir. 1970); NLRB v. Camco, Inc., 340 F.2d 803, 804 (5th Cir. 1965); cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965); Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). In addition, we may consider such factors as: (1) whether the Company had a valid purpose in obtaining information concerning the union’s strength; (2) whether the Company communicated this purpose to the employees; and (3) whether the Company assured the employees that no reprisals would be taken. NLRB v. Varo, supra; NLRB v. Camco, Inc., supra. Sullivan and Cone were" }, { "docid": "6983163", "title": "", "text": "Inc., 99 F.3d 223, 227 (7th Cir. 1996). We also consider whether questions about protected activity are accompanied by assurances against reprisal and whether the interrogated worker feels constrained to lie or give noncommittal answers rather than answering truthfully. See id. Substantial evidence supports the Board’s conclusion that management coercively interrogated Mr. Steele on August 16. The closed-door meeting was conducted in a manager’s office by Heathcoat and Ireland, two people who had authority to fire Mr. Steele. The two managers questioned Mr. Steele regarding why he would want to bring a union into the company. See Beverly Cal. Corp., 227 F.3d at 835 (holding that an employer may not probe directly or indirectly into an employee’s reasons for supporting a union). Moreover, Ireland immediately thereafter asked Mr. Steele about his own career advancement and arranged an interview for a maintenance position, even though no such opening existed. The managers did not assure Mr. Steele that reprisals would not be taken against him for his answers, adding to the potentially coercive nature of the inquiry. Further, this meeting was conducted after company managers had expressed uneasiness over union activity. These circumstances are more than enough evidence to sustain the Board’s findings. Multi-Ad next challenges the Board’s finding that it made an implied promise of benefits by asking Mr. Steele how he could help his own situation and by arranging the job interview. An employer violates the Act when it interferes with the employees’ exercise of their rights to organize by soliciting grievances when such solicitation is accompanied by implied promises of benefits specifically aimed at deterring union activity. See 6 West Ltd. v. NLRB, 237 F.3d 767, 782 (7th Cir.2001). Here, Ireland asked Mr. Steele why he wanted to form a union and then asked Mr. Steele how Mr. Steele could improve his own situation. Mr. Steele expressed an interest in a maintenance position, and Ireland arranged for an interview immediately, even though there were no such openings. The context in which this occurred is significant. Because the managers made this overture during a conversation about the need for a" }, { "docid": "12775762", "title": "", "text": "Substantial evidence indicates that Aaron Rosenberg was the highest ranking officer in the company, that employees Hill and Diffenbach supplied untruthful answers to the May 10 questioning, and that an atmosphere of hostility prevailed during the interrogation. Furthermore, the interrogation here can be regarded as being more coercive than the questioning proscribed in NLRB v. Solboro Knitting Mills, Inc., 572 F.2d 936, 939-40 (2d Cir. 1978), cert. den. 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). In Solboro the group questioning consisted of one inquiry as to whether the employees wanted the union, which was greeted by silence. By contrast, the questioning on May 19 involved an inquiry into pro-union sentiment and inquiry into the reasons for that sentiment. We find that the Administrative Law Judge’s finding of coercion is supported by the evidence. The promises and grant of a benefit (the wage and health plan offers) were not expressly made dependent upon the employees’ rejection of the Union. Nevertheless, the timing of those offers indicated a coercive purpose and effect. See, e. g., NLRB v. Colonial Knitting Corp., 464 F.2d 949 (3d Cir. 1972) (granting of wage increases on eve of certification election was coercive). The company failed, in the hearings before Judge Miller, to justify the timing of the offer of benefits, as it was called upon to do to avoid the inference of anti-union action. See NLRB v. Styletek, 520 F.2d 275 (1st Cir. 1975). The evidence in the record supports Judge Miller’s conclusion that these offers were made by Aaron Rosenberg on May 19. Timing is also the key ingredient in the threats to hire new employees and to change the job assignments of Hill and Hood. Given the circumstances, the employees could reasonably infer that these threats were directed towards their decision to join the Union. See NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374, 381 (5th Cir. 1973). Furthermore, the removal of employee Hill from the driving assignment on the large truck at the time of the Union confrontation violated § 8(a)(3). The timing and circumstances of the reassignment support Judge Miller’s" }, { "docid": "9821238", "title": "", "text": "if we might reach a contrary result in deciding the case de novo. Sturgis Newport Bus. Forms, Inc. v. NLRB, supra, 536 F.2d at 1256, and cases cited therein. The ALJ concluded that in conversing with its employees, Delco was guilty of coercive interrogation, requesting employees to campaign against the Union, and threatening to discontinue jobs and existing company benefits. Even if we accept the ALJ’s credibility resolutions, we must nonetheless disagree with his and the Board’s conclusion that a Section 8(a)(1) violation has been committed. A. Coercive Interrogation It is well established in this Circuit that interrogation of employees is not illegal per se. NLRB v. Weingarten, Inc., 5 Cir. 1964, 339 F.2d 498, 500. “To fall within the ambit of § 8(a)(1), either the words themselves or the context in which they are used must suggest an element of coercion or interference.” Id. and cases cited therein. The test of whether questioning is unlawful is whether such questioning tends to be coercive, not whether the employees are, in fact, coerced. Cagle’s, Inc. v. NLRB, 5 Cir. 1979, 588 F.2d 943, 948 n. 3; NLRB v. Pope Maintenance Corp., 5 Cir. 1978, 573 F.2d 898, 904. This Circuit has employed “widely accepted criteria” in determining whether the interrogation in question tends to be coercive: (1) the history of the employer’s attitude toward its employees; (2) the type of information sought or related; (3) the company rank of the questioner; (4) the place and manner of the conversation; (5) the truthfulness of the employee’s responses; (6) whether the employer had a valid purpose in obtaining the information; (7) if so, whether this purpose was communicated to the employee, and (8) whether the employer assures employees that no reprisals will be taken if they support the union. NLRB v. Aero Corp., 5 Cir. 1978, 581 F.2d 511, 514; Sturgis Newport Bus. Forms, Inc. v. NLRB, supra, 563 F.2d at 1256; NLRB v. Camco, Inc., 5 Cir. 1965, 340 F.2d 803, cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339. See NLRB v. Pope Maintenance Corp., supra, 573 F.2d at" }, { "docid": "19838105", "title": "", "text": "was no evidence that the employee could have believed Dillon, a low-level supervisor, had authority to speak for the Company. We hold that the Board should not have considered this single, isolated statement in determining whether the Company had coerced its employees. Excluding the plant-closing threat, the other conversations pale into insignificance. They involved only three employees out of 455. They occurred in the employees’ work areas between persons in daily contact and were casual and friendly. There was no hint of reprisal for Union support. Only one of the indicia used in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), to identify coercive interrogations is present: a history of employer hostility and discrimination. But an interrogation not coercive in itself “does not become coercive because the employer is guilty of other unfair practices.” NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 714 (2d Cir. 1969). For a nonthreatening conversation to violate Section 8(a) (1), there must be circumstances which would reasonably induce fear of reprisal. NLRB v. McCormick Steel Co., 381 F.2d 88 (5th Cir. 1967). We find no circumstances in this case to support a finding that the interrogations produced fear in any of the three employees. The conversations were not coercive within the meaning of Section 8(a) (1). We therefore refuse to enforce Paragraphs 1(b) and (c) of the Board’s order. The first two paragraphs of the “Notice to Employees” should be deleted. Enforced as modified. . 29 U.S.C. § 158(a): “It shall be an unfair labor practice for an employer— . . . (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. . ” . Lake City Foundry Co. v. NLRB, 432 F.2d 1162 (7th Cir. 1970); Boyle’s Famous Corned Beef Co. v. NLRB, 400 F.2d 154 (8th Cir. 1968); NLRB v. Coca-Cola Bottling Co., 333 F.2d 181 (7th Cir. 1964); NLRB v. Magic Slacks, Inc., 314 F.2d 844 (7th Cir. 1963); NLRB v. Post Publishing Co., 311 F.2d 565 (7th Cir. 1962). . 29 U.S.C. § 152(5): “The term ‘labor" } ]

[ { "docid": "17687858", "title": "", "text": "nutritional need for potencies exceeding the upper limits; and second, that to find actual therapeutic intent under part B of Section 321(g)(1) requires something more than evidence of uselessness as a food for most people. 504 F.2d at 789. This holding does not invalidate a definition of food that is based in part on consumption for nutritive value. See also United States v. “Vitasafe Formula M”, supra, 226 F.Supp. at 278; United States v. Nutrition Service, Inc., supra, 227 F.Supp. at 385. This double use of the word “food” in Section 321(f) makes it difficult to interpret the parenthetical “other than food” exclusion in the Section 321(g)(1)(C) drug definition. As shown by that exclusion, Congress obviously meant a drug to be something “other than food,” but was it referring to “food” as a term of art in the statutory sense or to foods in their ordinary meaning? Because all such foods are “intended to affect the structure or any function of the body of man or other animals” and would thus come within the part C drug definition, presumably Congress meant to exclude common-sense foods. Fortunately, it is not necessary to decide this question here because starch blockers are not food in either sense. The tablets and pills at issue are not consumed primarily for taste, aroma, or nutritive value under Section 321(f)(1); in fact, as noted earlier, they are taken for their ability to block the digestion of food and aid in weight loss. In addition, starch blockers are not chewing gum under Section 321(f)(2) and are not components of food under Section 321(f)(3). To qualify as a drug under Section 321(g)(1)(C), the articles must not only be articles “other than food,” but must also be “intended to affect the structure or any function of the body of man or other animals.” Starch blockers indisputably satisfy this requirement for they are intended to affect digestion in the people who take them. Therefore, starch blockers are drugs under Section 321(g)(1)(C) of the Food, Drug, and Cosmetic Act. Affirmed. The FDA urges an interpretation of the statute that would allow drug" } ]

[ { "docid": "749100", "title": "", "text": "exception. While the court in United States v. Article of Drug BZD Silogen and Zymaferm, No. 74-L-136 (D.Neb. Sept. 1, 1976), declared intended use “[t]he touchstone under the statute” even though the manufacturer tried to bring its product within the part (C) parenthetical exclusion for food, it relied primarily on this same line of cosmetics cases and cases under part (B) without discussing the possibility of a distinction. And the court in United States v. “Vitasafe Formula M”, 226 F.Supp. 266, 278 (D.N.J.1964), rev’d on other grounds, 345 F.2d 864 (3d Cir.1965), found that the “lipotropic factors” contained in a food article were “drugs within the meaning of 21 U.S.C. § 321(g) in that their only known use is to affect the structure and function of part of the body.” While the court referred to part (C), regulation of the entire food article was not really at issue, since the statute would reach a determinate active ingredient within it. Cf. Premo Pharmaceutical Laboratories, Inc. v. United States, 629 F.2d 795, 799 (2d Cir.1980). The government argues that even an explicit statutory exclusion such as the one in part (C) should not be read to preclude regulation where necessary to effectuate the broad protective purposes of the Act. Thus, according to the government, even were starchblockers classifiable as a food as a general matter, the manufacturers’ labeling claims here reveal an intended use which brings them within the reach of the statute. The government finds support for its position in AMP Inc. v. Gardner, 389 F.2d 825 (2d Cir.), cert. denied, 393 U.S. 825, 89 S.Ct. 86, 21 L.Ed.2d 95 (1968), and United States v. An Article of Drug ... Bacto-Unidisk, 394 U.S. 784, 89 S.Ct. 1410, 22 L.Ed.2d 726 (1969). Both AMP and Bacto-Unidisk addressed the superficially analogous question whether a product was properly classified a “drug” or excluded as a “device” under section 321 of the Act. Just as the parenthetical of subsection (g)(1)(C) excludes “food” from the coverage of that provision, the final clause of subsection (g)(1) excludes “devices” from the reach of the entire definition. The product" }, { "docid": "17687851", "title": "", "text": "that happens to be a food but is intended for use in the treatment of disease fits squarely within the drug definition in part B of Section 321(g)(1) and may be regulated as such. See, eg., National Nutritional Foods Ass’n v. Mathews, 557 F.2d 325, 334 (2d Cir.1977); United States v. Hohensee, 243 F.2d 367 (3d Cir.1957) (tea leaves); United States v. 250 Jars of United States Fancy Pure Honey, 218 F.Supp. 208, 211 (E.D.Mich.1963), affirmed, 344 F.2d 288 (6th Cir.1965). See also S.Rep. No. 493, 73d Cong., 2d Sess. 2 (1934), reprinted in 2 L.H.F.D.C.A. 721, 722 (provision providing that the definition of food, drug, and cosmetic not be construed as mutually exclusive was deleted because language was superfluous); S.Rep. No. 361, 74th Cong., 1st Sess. 4 (1935), reprinted in 3 L.H.F.D.C.A. 660, 663. Under part C of the statutory drug definition, however, “articles (other than food)” are expressly excluded from the drug definition (as are devices) in Section 321(g)(1). Cf. United States v. “Vitasafe Formula M,” 226 F.Supp. 266, 278 (D.N.J.1964) (article is food and drug; but it is unclear whether court applied drug definition in Section 321(g)(1)(B) or (Q). In order to decide if starch blockers are drugs under Section 321(g)(1)(C), therefore, we must decide if they are foods within the meaning of the part C “other than food” parenthetical exception to Section 321(g)(1)(C). And in order to decide the meaning of “food” in that parenthetical exception, we must first decide the meaning of “food” in Section 321(f). Congress defined “food” in Section 321(f) as “articles used as food.” This definition is not too helpful, but it does emphasize that “food” is to be defined in terms of its function as food, rather than in terms of its source, biochemical composition or ingestibility. Plaintiffs’ argument that starch blockers are food because they are derived from food — kidney beans — is not convincing; if Congress intended food to mean articles derived from food it would have so specified. Indeed some articles that are derived from food are indisputably not food, such as caffeine and penicillin. In addition," }, { "docid": "749096", "title": "", "text": "and utilization of starch. Section 201(g)(1)(C) of the Act defines the term “drug” in part to mean “articles (other than food) intended to affect the structure or any function of the body of man or other animals.” 21 U.S.C. § 321(g)(1)(C). The immediately preceding subsection defines “food” as “(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.” Id. § 321(f). The starchblocker manufacturers concede that their products are intended to affect a human bodily function, but contend that the products are “food” and thus fall within the parenthetical exclusion of subsection (g)(1)(C). The government argues that the statutory definition of food does not encompass starchblockers, and seeks to enjoin their sale until the FDA approves them as a “drug.” Unless a manufacturer can demonstrate that its product is “generally recognized as safe and effective,” see id. § 321(p), classification as a drug requires the manufacturer to cease marketing its product until the FDA approves its new drug application. See id. § 355(a) . In deciding whether the FDA’s determination that starchblockers are drugs is “in accordance with law,” 5 U.S.C. § 706(2)(A), the FDA’s interpretation merits substantial deference, National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 701-02 (2d Cir.) cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975). A court must only ensure that the agency’s action was “governed by an intelligible statutory principle.” National Nutritional Foods Association v. Mathews, 557 F.2d 325, 337 (2d Cir.1977). Here the government contends that subsection (g)(1)(C) contemplates dual classification; in addition to classifying as drugs all those products that affect bodily structure or functions and are not common foods, the Act is said also to classify as drugs within the part (C) definition even a “food” product, if it is sold with specific representations as to its physiological effects. The manufacturers argue, on the other hand, that the definition of “food” in subsection (f) , which refers to common usage, governs the reach of the parenthetical exclusion in part (C). Therefore, they urge," }, { "docid": "749107", "title": "", "text": "(2d Cir.1974), cert. denied, 420 U.S. 946, 95 S.Ct. 1326, 43 L.Ed.2d 424 (1975). B. Language, Structure, and Legislative History of Section 321(g)(1)(C). The most natural way to read the term “food” in the exclusion under part (C), as the manufacturers urge, is as a reference to the definition of that term in the immediately preceding subsection, which was added by Congress at the same time. However, the term would then refer most plausibly to that entire definition, not solely its first element, which concerns common usage. That the drafters chose to repeat the defined term in the first part of its own definition — “articles used for food or drink for man or other animals” — -suggests only that they intended to include the everyday meaning of food as one component of the statutory meaning. Had they intended the parenthetical exclusion of part (C) to encompass only this everyday meaning, they could easily have repeated the words “used for food” appearing in subsection (f)(1), instead of employing the defined term, “food.” The second element of the subsection (f) definition of food is chewing gum. Consistent with its interpretive stance generally, the government argues by example that a chewing gum marketed as a laxative would be regulable as a drug under section 321(g)(1)(C). The manufacturers would presumably argue that the parenthetical excludes such a product unless some ingredient independently was classifiable as a drug. The third element of the subsection (f) definition, however, — “articles used for components of any such articles” as chewing gum and ordinary food — poses a severe problem for the manufacturers’ construction. Reading the parenthetical to exclude components of ordinary foods and chewing gum from the coverage of part (C) raises the anomalous possibility that a manufacturer might escape the premarketing approval requirements by distributing an otherwise regulable article not in pure form but as an ingredient of a food or chewing gum. See Nutrilab, 713 F.2d at 338 n. *. Such a result would convert a provision designed to bring a species of article not otherwise covered by any portion of the Act within" }, { "docid": "17687849", "title": "", "text": "testing as required to obtain FDA approval as a new drug has taken place. If starch blockers were drugs, the manufacturers would be required to file a new drug application pursuant to 21 U.S.C. § 355 and remove the product from the marketplace until approved as a drug by the FDA. The statutory scheme under the Food, Drug, and Cosmetic Act is a complicated one. Section 321(g)(1) provides that the term “drug” means * * * (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clauses (A), (B), or (C) of this paragraph; but does not include devices or their components, parts, or accessories. The term “food” as defined in Section 321(f) means (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article. Section 321(g)(1)(C) was added to the statute in 1938 to expand the definition of “drug.” The amendment was necessary because certain articles intended by manufacturers to be used as drugs did not fit within the “disease” requirement of Section 321(g)(1)(B). Obesity in particular was not considered a disease. Thus “anti-fat remedies” marketed with claims of “slenderizing effects” had escaped regulation under the prior definition. See Food, Drags, and Cosmetics: Hearings on S. 1944 before Sub-comm. of Sen. Comm, on Commerce, 73d Cong., 2d Sess. 15-16 (1933) (Statement of Walter G. Campbell, Chief of FDA), reprinted in 1 Legislative History of Food, Drug and Cosmetic Act 105, 107-108 (hereinafter “L.H.F.D.C.A.\"). The purpose of part C in Section 321(g)(1) supra was “to make possible the regulation of a great many products that have been found on the market that cannot be alleged to be treatments for diseased conditions.” Id. It is well established that the definitions of food and drug are normally not mutually exclusive; an article" }, { "docid": "749108", "title": "", "text": "of the subsection (f) definition of food is chewing gum. Consistent with its interpretive stance generally, the government argues by example that a chewing gum marketed as a laxative would be regulable as a drug under section 321(g)(1)(C). The manufacturers would presumably argue that the parenthetical excludes such a product unless some ingredient independently was classifiable as a drug. The third element of the subsection (f) definition, however, — “articles used for components of any such articles” as chewing gum and ordinary food — poses a severe problem for the manufacturers’ construction. Reading the parenthetical to exclude components of ordinary foods and chewing gum from the coverage of part (C) raises the anomalous possibility that a manufacturer might escape the premarketing approval requirements by distributing an otherwise regulable article not in pure form but as an ingredient of a food or chewing gum. See Nutrilab, 713 F.2d at 338 n. *. Such a result would convert a provision designed to bring a species of article not otherwise covered by any portion of the Act within the purview of the food provisions, see United States v. An Article of Food____ Aangamik 15, 678 F.2d 735 (7th Cir.1982); Natick Paperboard Corp. v. Weinberger, 525 F.2d 1103 (1st Cir.1975) cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976), into a boundless escape hatch from drug coverage. That reading would also conflict with the commonly understood import of the term “article” as used in the drug definitions, which the manufacturers recognize reaches any determinate substance, including one distributed as an ingredient of a nondrug product. Thus, contrary to the manufacturers’ contention, the meaning of the term “food” for purposes of the parenthetical exclusion and its technical statutory meaning for purposes of the coverage of the food provisions cannot be identical. Cf. Nutrilab, 713 F.2d at 337-38 (noting that the statute “evidently uses the word ‘food’ in two different ways,” but wondering if exclusion refers “to ‘food’ as a term of art in the statutory sense or to foods in their ordinary meaning?”). The government’s construction, however, is equally problematic. The government" }, { "docid": "749111", "title": "", "text": "which an article is used, therefore, not any marketing claim on the part of the manufacturer or distributor as to a specific physiological purpose of that use, should determine whether it is a food for purposes of the parenthetical exclusion of section 321(g)(1)(C). See 1 H. Toulmin, The Law of Foods, Drugs and Cosmetics §§ 4.10, .15 (1963 & Supp.1969); cf. United States v. Technical Egg Products, Inc., 171 F.Supp. 326, 328 (N.D.Ga.1959) (item normally used for food is regulable as food under Act even though not intended for human consumption). The government’s suggested construction also renders the parenthetical in section 321(g)(1)(C) meaningless. If the subsection deems articles represented to affect the structure and functions of the human body drugs notwithstanding the common usage of those articles for food, then the coverage of an article by the food definition is irrelevant and the parenthetical excludes nothing that the nonparenthetieal language would include. The government urges that, since all foods in some way affect bodily structure and function, the drafters must have inserted the parenthetical to avoid subjecting all foods to regulation as drugs by virtue of their universal effect on bodily structure and function. But the courts have always read the clauses in the statutory definitions employing the term “intended” to refer to specific marketing representations, see Action on Smoking and Health v. Harris, 655 F.2d 236, 238-39 (D.C.Cir.1980); National Nutritional Foods Association v. Mathews, 557 F.2d 325, 333-34 (2d Cir.1977), so this universal effect would not bring common foods sold without recourse to physiological claims within the statute in any ease. As a logical matter, either the parenthetical limits the coverage of the subsection to nonfoods, or it expresses no limit beyond the nonparenthetieal definition. Construing the parenthetical to exclude all articles commonly used for food regardless of physiological claims made in connection with their sale does not defeat the central purpose of the provision as revealed in its legislative history. The original Food and Drug Act, enacted in 1906, classified as drugs only articles intended for therapeutic use. See Federal Food and Drug Act, ch. 3915, 34 Stat." }, { "docid": "749123", "title": "", "text": "a food because their biochemical composition varies from that of the bean flour used for making bread — a paradigmatic food — only by the percentage of each component and the addition of excipients and binders. This argument fails for the same reasons articulated in Nutrilab. The concentration of certain components during processing effects a significant physical change. The Supreme Court recently-ruled in fact that the marketing of an established drug with different excipients and binders will necessitate submission of an application for approval as a new drug. See United States v. Generix Drug Corp., — U.S.-, 103 S.Ct. 1298, 75 L.Ed.2d 198 (1983). Most fundamentally, the argument fails to address the Act’s focus on usage. The government approves the Seventh Circuit’s result in Nutrilab, but takes issue with the standard of usage by which it was reached. The government argues that the meaning of “food” for purposes of the parenthetical exclusion of section 321(g)(1)(C) diverges from the definition of that term contained in section 321(f). If a type of article is used at all in a manner associated with the ordinary meaning of food — for taste, aroma, or nutritive value — the government states it may be regulated as a food under section 321(f)(1). On the other hand, if the same food were represented to have a particular structural or functional effect on the body, the government claims it may also be regulated as a drug under section 321(g)(1)(C). Thus, the government prefers the formulation of the Nutrilab district court, which held that only if a food is used solely for taste, aroma, or nutrition and no claims are made that it affects bodily function may it escape regulation under section 321(g)(1)(C). The manufacturers concur in the Seventh Circuit’s criticism of the Nutrilab district court’s definition, but contend that the appellate court’s formulation is itself “unduly restrictive” because it fails to draw appropriate conclusions from the fact it recognized — that some foods, such as coffee and prune juice, are frequently consumed specifically for their physiological effect, but are nonetheless foods. But this criticism, even if it were" }, { "docid": "749109", "title": "", "text": "the purview of the food provisions, see United States v. An Article of Food____ Aangamik 15, 678 F.2d 735 (7th Cir.1982); Natick Paperboard Corp. v. Weinberger, 525 F.2d 1103 (1st Cir.1975) cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976), into a boundless escape hatch from drug coverage. That reading would also conflict with the commonly understood import of the term “article” as used in the drug definitions, which the manufacturers recognize reaches any determinate substance, including one distributed as an ingredient of a nondrug product. Thus, contrary to the manufacturers’ contention, the meaning of the term “food” for purposes of the parenthetical exclusion and its technical statutory meaning for purposes of the coverage of the food provisions cannot be identical. Cf. Nutrilab, 713 F.2d at 337-38 (noting that the statute “evidently uses the word ‘food’ in two different ways,” but wondering if exclusion refers “to ‘food’ as a term of art in the statutory sense or to foods in their ordinary meaning?”). The government’s construction, however, is equally problematic. The government in effect asks this court to impute the element of intention into the meaning of “food” in the parenthetical and thereby to confer a third meaning on the term distinct from those it carries in sections 321(f) and 321(f)(1). The language and structure of the relevant provisions seem inconsistent with this view. Neither the definition of food in subsection (f) nor the parenthetical exclusion of food in subsection (g)(1)(C) makes any reference to intention, see Nutrilab, 713 F.2d at 337, even though the concept is present in the definition in which the exclusion appears, 21 U.S.C. § 321(g)(1)(C); in another definition in the same subsection, id. § 321(g)(1)(B); and at other points in the section, id. § 321(h), (i), (s), (w), (x). The definition in section 321(g)(1)(B) instead refers to “articles used for food.” By repeating the defined term in its own definition, and by making use or function the definí tional criterion, Congress appears to have intended that this component of the statutory definition of “food” refer to common usage. The ordinary way in" }, { "docid": "17687854", "title": "", "text": "it in terms of its biochemical composition is clearly wrong, defining food as articles intended by the manufacturer to be used as food is problematic. When Congress meant to define a drug in terms of its intended use, it explicitly incorporated that element into its statutory definition. For example, Section 321(g)(1)(B) defines drugs as articles “intended for use” in, among other things, the treatment of disease; Section 321(g)(1)(C) defines drugs as “articles (other than food) intended to affect the structure or any function of the body of man or other animals.” The definition of food in Section 321(f) omits any reference to intent. But see United States v. Articles of Drug, No. CV74-L-136 (D.Neb. Sept. 1, 1976) (App. A-87 at A-92), where the court noted the intended use of the product in considering a defense that Zymaferm was a food. Further, a manufacturer cannot avoid the reach of the FDA by claiming that a product which looks like food and smells like food is not food because it was not intended for consumption. In United States v. Technical Egg Prods., Inc., 171 F.Supp. 326 (N.D.Ga.1959), the defendant argued that the eggs at issue were not adulterated food under the Act because they were not intended to be eaten. The court held that there was a danger of their being diverted to food use and rejected defendant’s argument. See also H. Toulmin, A Treatise on the Law of Food, Drugs and Cosmetics, § 4.10 at 49 (1963). Although it is easy to reject the proffered food definitions, it is difficult to arrive at a satisfactory one. In the absence of clearcut Congressional guidance, it is best to rely on statutory language and common sense. The statute evidently uses the word “food” in two different ways. The statutory definition of “food” in Section 321(f) is a term of art and is clearly intended to be broader than the common-sense definition of food, because the statutory definition of “food” also includes chewing gum and food additives. Food additives can be any substance the intended use of which results or may reasonably result in" }, { "docid": "749097", "title": "", "text": "id. § 355(a) . In deciding whether the FDA’s determination that starchblockers are drugs is “in accordance with law,” 5 U.S.C. § 706(2)(A), the FDA’s interpretation merits substantial deference, National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 701-02 (2d Cir.) cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975). A court must only ensure that the agency’s action was “governed by an intelligible statutory principle.” National Nutritional Foods Association v. Mathews, 557 F.2d 325, 337 (2d Cir.1977). Here the government contends that subsection (g)(1)(C) contemplates dual classification; in addition to classifying as drugs all those products that affect bodily structure or functions and are not common foods, the Act is said also to classify as drugs within the part (C) definition even a “food” product, if it is sold with specific representations as to its physiological effects. The manufacturers argue, on the other hand, that the definition of “food” in subsection (f) , which refers to common usage, governs the reach of the parenthetical exclusion in part (C). Therefore, they urge, if an article is a “food” under subsection (f), it cannot be regulated as a drug under subsection (g) (1)(C) regardless of any representations as to its structural or functional effects made in connection with its sale. The government’s contention is untenable. Though most sections of the Act countenance dual classification, no other contains a parenthetical like that Congress inserted in part (C). Ignoring that parenthetical would render meaningless the distinctions Congress has attempted to delineate. Nevertheless, the government is correct in claiming that starchblocker pills are a “drug” under the Act, because the pills are not a “food” in any sense cognizable under the statute. Accord Nutrilab, Inc. v. Schweiker, 713 F.2d 335 (7th Cir.1983). I. Propriety of Dual Classification. A. The Case Law The government urges a construction of section 321(g)(1)(C) analogous to that of section 321(g)(1)(B). Under part (B) a product promoted for and therefore intended to be used for a therapeutic purpose — for example, an orange sold as a cure for the common cold — may be regulated as a" }, { "docid": "17687852", "title": "", "text": "food and drug; but it is unclear whether court applied drug definition in Section 321(g)(1)(B) or (Q). In order to decide if starch blockers are drugs under Section 321(g)(1)(C), therefore, we must decide if they are foods within the meaning of the part C “other than food” parenthetical exception to Section 321(g)(1)(C). And in order to decide the meaning of “food” in that parenthetical exception, we must first decide the meaning of “food” in Section 321(f). Congress defined “food” in Section 321(f) as “articles used as food.” This definition is not too helpful, but it does emphasize that “food” is to be defined in terms of its function as food, rather than in terms of its source, biochemical composition or ingestibility. Plaintiffs’ argument that starch blockers are food because they are derived from food — kidney beans — is not convincing; if Congress intended food to mean articles derived from food it would have so specified. Indeed some articles that are derived from food are indisputably not food, such as caffeine and penicillin. In addition, all articles that are classed biochemically as proteins cannot be food either, because for example insulin, botulism toxin, human hair and influenza virus are proteins that are clearly not food. Plaintiffs argue that 21 U.S.C. § 343(j) specifying labeling requirements for food for special dietary uses indicates that Congress intended products offered for weight conditions to come within the statutory definition of “food.” Plaintiffs misinterpret that statutory Section. It does not define food but merely requires that if a product is a food and purports to be for special dietary uses, its label must contain certain information to avoid being misbranded. See United States v. Nutrition Service, Inc., 227 F.Supp. 375, 387 (W.D.Pa.1964), affirmed, 347 F.2d 233 (3d Cir.1965). If all products intended to affect underweight or overweight conditions were per se foods, no diet product could be regulated as a drug under Section 321(g)(1)(C), a result clearly contrary to the intent of Congress that “anti-fat remedies” and “slenderizers” qualify as drugs under that Section. If defining food in terms of its source or defining" }, { "docid": "749098", "title": "", "text": "if an article is a “food” under subsection (f), it cannot be regulated as a drug under subsection (g) (1)(C) regardless of any representations as to its structural or functional effects made in connection with its sale. The government’s contention is untenable. Though most sections of the Act countenance dual classification, no other contains a parenthetical like that Congress inserted in part (C). Ignoring that parenthetical would render meaningless the distinctions Congress has attempted to delineate. Nevertheless, the government is correct in claiming that starchblocker pills are a “drug” under the Act, because the pills are not a “food” in any sense cognizable under the statute. Accord Nutrilab, Inc. v. Schweiker, 713 F.2d 335 (7th Cir.1983). I. Propriety of Dual Classification. A. The Case Law The government urges a construction of section 321(g)(1)(C) analogous to that of section 321(g)(1)(B). Under part (B) a product promoted for and therefore intended to be used for a therapeutic purpose — for example, an orange sold as a cure for the common cold — may be regulated as a drug although it is undoubtedly also a food. See, e.g., National Nutritional Foods Association v. Mathews, 557 F.2d at 334; United States v. Hohensee, 243 F.2d 367 (3d Cir.) cert. denied, 353 U.S. 976, 77 S.Ct. 1058, 1 L.Ed.2d 1136 (1957). This result is consistent with the language of the relevant definitions, because an orange sold in such a manner is both “used for food” and “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man.” But part (C) differs from its putative analogue in one glaring respect: it includes a parenthetical explicitly and unqualifiedly excluding “food” from its coverage. The cases upon which the government relies for its contentions provide little if any support for the proposition that a food may be regulated under part (C). With two exceptions, they either rest on part (B), see, e.g., Hohensee, 243 F.2d at 368-70 & n. 1, or involve cosmetics, see, e.g., United States v. An Article ... Sudden Change, 409 F.2d 734, 739 (2d Cir.1969), and thus involve no explicit" }, { "docid": "749120", "title": "", "text": "v. United States, 340 U.S. 593, 600, 71 S.Ct. 515, 520, 95 L.Ed. 566 (1951); NNFA v. Mathews, 557 F.2d at 336-37. Items classified as foods by no means escape regulation. Though food manufacturers need not obtain premarketing approval for their products, they are still subject to the Act’s provisions on adulteration and misbranding. 21 U.S.C. §§ 342, 343. To enforce these provisions, the FDA may inspect factories, id. § 374; commence seizures of adulterated foods, id. § 334; seek injunctions against the sale of adulterated or misbranded food, id. § 332; and seek criminal penalties in appropriate eases, id. § 333. Though these provisions do not bear directly on the threshold question whether an item is a food or a drug, they do support the inference that Congress determined that a different level of regulation was adequate to protect the public in the case of an article commonly used for food, even though marketers of the product claim that it produces specific physiological effects. Absent specific indications undermining that inference in the legislative history, such as those unearthed by the AMP and Bacto-Unidisk courts with respect to “devices,” the congressional determination deserves respect. Thus, if an article affects bodily structure or function by way of its consumption as a food, the parenthetical precludes its regulation as a drug notwithstanding a manufacturer’s representations as to physiological effect. The Act evidences throughout an objective to guarantee accurate information to consumers of foods, drugs, and cosmetics. See, e.g., 21 U.S.C. § 343. The presence of the parenthetical in part (C) suggests that Congress did not want to inhibit the dissemination of useful information concerning a food’s physiological properties by subjecting foods to drug regulation on the basis of representations in this regard. Whether or not the parenthetical of section 321(g)(1)(C) incorporates the entire technical definition of food in section 321(f), however, and whether or not section 321(g)(1)(C) contemplates dual classification, the manufacturers cannot prevail here. Notwithstanding the government’s contention that the FDA could regulate their products as a food if it chose to do so, the manufacturers cannot demonstrate that starchblockers are" }, { "docid": "749095", "title": "", "text": "protein from its natural source, as the labels of several of their products state. The manufacturers contend that a large proportion of the starch is simply removed from the beans in order to produce a flour with a high concentration of protein; starchblocker pills are then made by adding various binders and excipients. Whether characterized as extraction or concentration, it is undisputed that the process entails crushing the beans, heating them, removing their hulls, and then separating the starch constituents from the protein constituents by air-classification. The beans contain a protein that inhibits the normal functioning of alpha-amylase, an enzyme produced by the pancreas. Alpha-amylase aids in the digestion of starch by breaking it down into glucose, which the body then absorbs and utilizes for energy. Plaintiffs market their product as an aid to weight reduction, claiming that, since the protein prevents the alpha-amylase from acting, starchblockers allow some starch to pass through the body undigested, enabling dieters to avoid calories. The protein thus functions as an antinutrient by interfering with the normal digestion, absorption, and utilization of starch. Section 201(g)(1)(C) of the Act defines the term “drug” in part to mean “articles (other than food) intended to affect the structure or any function of the body of man or other animals.” 21 U.S.C. § 321(g)(1)(C). The immediately preceding subsection defines “food” as “(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.” Id. § 321(f). The starchblocker manufacturers concede that their products are intended to affect a human bodily function, but contend that the products are “food” and thus fall within the parenthetical exclusion of subsection (g)(1)(C). The government argues that the statutory definition of food does not encompass starchblockers, and seeks to enjoin their sale until the FDA approves them as a “drug.” Unless a manufacturer can demonstrate that its product is “generally recognized as safe and effective,” see id. § 321(p), classification as a drug requires the manufacturer to cease marketing its product until the FDA approves its new drug application. See" }, { "docid": "749106", "title": "", "text": "the public health, should be liberally construed to advance that purpose. See Whirlpool Corp. v. Marshall, 445 U.S. 1,13,100 S.Ct. 883, 891, 63 L.Ed.2d 154 (1980); United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). But they do not support the degree of definitional flexibility urged by the FDA here, for they neither change the rule that a statute’s interpreter looks first to its language, see Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977), nor eliminate the need to scrutinize the structure and history of the applicable provisions as carefully as did the AMP and Bacto-Unidisk courts themselves. See National Nutritional Foods Association v. Mathews, 557 F.2d 325, 336 (2d Cir.1977) (notwithstanding holding in Bacto-Unidisk, “when an FDA determination that an article is a ‘drug’ is so directly in conflict with the statutory definition, it must be invalidated as arbitrary and capricious and not in accordance with law”); National Nutritional Foods Association v. FDA, 504 F.2d 761, 789 n. 35 (2d Cir.1974), cert. denied, 420 U.S. 946, 95 S.Ct. 1326, 43 L.Ed.2d 424 (1975). B. Language, Structure, and Legislative History of Section 321(g)(1)(C). The most natural way to read the term “food” in the exclusion under part (C), as the manufacturers urge, is as a reference to the definition of that term in the immediately preceding subsection, which was added by Congress at the same time. However, the term would then refer most plausibly to that entire definition, not solely its first element, which concerns common usage. That the drafters chose to repeat the defined term in the first part of its own definition — “articles used for food or drink for man or other animals” — -suggests only that they intended to include the everyday meaning of food as one component of the statutory meaning. Had they intended the parenthetical exclusion of part (C) to encompass only this everyday meaning, they could easily have repeated the words “used for food” appearing in subsection (f)(1), instead of employing the defined term, “food.” The second element" }, { "docid": "749110", "title": "", "text": "in effect asks this court to impute the element of intention into the meaning of “food” in the parenthetical and thereby to confer a third meaning on the term distinct from those it carries in sections 321(f) and 321(f)(1). The language and structure of the relevant provisions seem inconsistent with this view. Neither the definition of food in subsection (f) nor the parenthetical exclusion of food in subsection (g)(1)(C) makes any reference to intention, see Nutrilab, 713 F.2d at 337, even though the concept is present in the definition in which the exclusion appears, 21 U.S.C. § 321(g)(1)(C); in another definition in the same subsection, id. § 321(g)(1)(B); and at other points in the section, id. § 321(h), (i), (s), (w), (x). The definition in section 321(g)(1)(B) instead refers to “articles used for food.” By repeating the defined term in its own definition, and by making use or function the definí tional criterion, Congress appears to have intended that this component of the statutory definition of “food” refer to common usage. The ordinary way in which an article is used, therefore, not any marketing claim on the part of the manufacturer or distributor as to a specific physiological purpose of that use, should determine whether it is a food for purposes of the parenthetical exclusion of section 321(g)(1)(C). See 1 H. Toulmin, The Law of Foods, Drugs and Cosmetics §§ 4.10, .15 (1963 & Supp.1969); cf. United States v. Technical Egg Products, Inc., 171 F.Supp. 326, 328 (N.D.Ga.1959) (item normally used for food is regulable as food under Act even though not intended for human consumption). The government’s suggested construction also renders the parenthetical in section 321(g)(1)(C) meaningless. If the subsection deems articles represented to affect the structure and functions of the human body drugs notwithstanding the common usage of those articles for food, then the coverage of an article by the food definition is irrelevant and the parenthetical excludes nothing that the nonparenthetieal language would include. The government urges that, since all foods in some way affect bodily structure and function, the drafters must have inserted the parenthetical to" }, { "docid": "749122", "title": "", "text": "a food in any sense cognizable under the statute. II. Applying Section 321(g)(1)(C) to Starchblockers. The Seventh Circuit recently considered the identical question of the status of starchblockers under part (C) and concluded that they are drugs. Nutrilab, Inc. v. Schweiker, 713 F.2d 335 (7th Cir.1983), aff'g, 547 F.Supp. 880 (N.D.Ill.1982). The Nutrilab district court had treated the issue as one of intended use, and held that “ ‘food’ refers only to those items actually and solely ... consumed either for taste, aroma, or nutritional value.” 547 F.Supp. at 883. The Circuit Court found this definition “unduly restrictive” because, it observed, “some products such as coffee or prune juice are undoubtedly food but may be consumed on occasion for reasons other than taste, aroma, or nutritive value.” 713 F.2d at 338. It instead defined food as articles used “primarily for taste, aroma, or nutritive value,” id. (emphasis added), properly rejecting also any suggestion that the source of a product makes it a food, id. at 337. Here the manufacturers contend that starchblockers must be deemed a food because their biochemical composition varies from that of the bean flour used for making bread — a paradigmatic food — only by the percentage of each component and the addition of excipients and binders. This argument fails for the same reasons articulated in Nutrilab. The concentration of certain components during processing effects a significant physical change. The Supreme Court recently-ruled in fact that the marketing of an established drug with different excipients and binders will necessitate submission of an application for approval as a new drug. See United States v. Generix Drug Corp., — U.S.-, 103 S.Ct. 1298, 75 L.Ed.2d 198 (1983). Most fundamentally, the argument fails to address the Act’s focus on usage. The government approves the Seventh Circuit’s result in Nutrilab, but takes issue with the standard of usage by which it was reached. The government argues that the meaning of “food” for purposes of the parenthetical exclusion of section 321(g)(1)(C) diverges from the definition of that term contained in section 321(f). If a type of article is used at all" }, { "docid": "17687857", "title": "", "text": "as did the district court that articles used as food are articles used solely for taste, aroma or nutritive value is unduly restrictive since some products such as coffee or prune juice are undoubtedly food but may bé consumed on occasion for reasons other than taste, aroma, or nutritive value. 547 F.Supp. at 883. Defining food as articles used primarily for taste, aroma, or nutritive value would not be contrary to National Nutritional Foods Ass'n v. FDA, 504 F.2d 761 (2d Cir.1974). In that case, the FDA attempted to regulate as drugs all vitamin and mineral products in excess of the upper limits of the U.S. Recommended Daily Allowances (“RDA”). To bring these products within the Section 321(g)(1)(B) drug definition, the FDA had to show that the manufacturer’s intended use was for treatment of a disease. Because the hearing record disclosed no food or nutrition use of nutrients at such high levels, the FDA inferred that the products were intended for therapeutic use. The court found first, that a significant number of persons have indisputable nutritional need for potencies exceeding the upper limits; and second, that to find actual therapeutic intent under part B of Section 321(g)(1) requires something more than evidence of uselessness as a food for most people. 504 F.2d at 789. This holding does not invalidate a definition of food that is based in part on consumption for nutritive value. See also United States v. “Vitasafe Formula M”, supra, 226 F.Supp. at 278; United States v. Nutrition Service, Inc., supra, 227 F.Supp. at 385. This double use of the word “food” in Section 321(f) makes it difficult to interpret the parenthetical “other than food” exclusion in the Section 321(g)(1)(C) drug definition. As shown by that exclusion, Congress obviously meant a drug to be something “other than food,” but was it referring to “food” as a term of art in the statutory sense or to foods in their ordinary meaning? Because all such foods are “intended to affect the structure or any function of the body of man or other animals” and would thus come within the part" }, { "docid": "749121", "title": "", "text": "such as those unearthed by the AMP and Bacto-Unidisk courts with respect to “devices,” the congressional determination deserves respect. Thus, if an article affects bodily structure or function by way of its consumption as a food, the parenthetical precludes its regulation as a drug notwithstanding a manufacturer’s representations as to physiological effect. The Act evidences throughout an objective to guarantee accurate information to consumers of foods, drugs, and cosmetics. See, e.g., 21 U.S.C. § 343. The presence of the parenthetical in part (C) suggests that Congress did not want to inhibit the dissemination of useful information concerning a food’s physiological properties by subjecting foods to drug regulation on the basis of representations in this regard. Whether or not the parenthetical of section 321(g)(1)(C) incorporates the entire technical definition of food in section 321(f), however, and whether or not section 321(g)(1)(C) contemplates dual classification, the manufacturers cannot prevail here. Notwithstanding the government’s contention that the FDA could regulate their products as a food if it chose to do so, the manufacturers cannot demonstrate that starchblockers are a food in any sense cognizable under the statute. II. Applying Section 321(g)(1)(C) to Starchblockers. The Seventh Circuit recently considered the identical question of the status of starchblockers under part (C) and concluded that they are drugs. Nutrilab, Inc. v. Schweiker, 713 F.2d 335 (7th Cir.1983), aff'g, 547 F.Supp. 880 (N.D.Ill.1982). The Nutrilab district court had treated the issue as one of intended use, and held that “ ‘food’ refers only to those items actually and solely ... consumed either for taste, aroma, or nutritional value.” 547 F.Supp. at 883. The Circuit Court found this definition “unduly restrictive” because, it observed, “some products such as coffee or prune juice are undoubtedly food but may be consumed on occasion for reasons other than taste, aroma, or nutritive value.” 713 F.2d at 338. It instead defined food as articles used “primarily for taste, aroma, or nutritive value,” id. (emphasis added), properly rejecting also any suggestion that the source of a product makes it a food, id. at 337. Here the manufacturers contend that starchblockers must be deemed" } ]

[ { "docid": "9285312", "title": "", "text": "Villalpando reached his hands back into the vehicle, but this disagreement between the parties is immaterial. The video establishes that his right hand disappeared inside the vehicle at least once and possibly as many as three or four times. Even if Villalpando's hand suspiciously reached back inside the vehicle only once, it was reasonable for Clark to fear he may have been reaching for a weapon. Even if Clark had used excessive force in violation of Villalpando's Fourth Amendment right, Clark would still be entitled to qualified immunity because the right, defined at a fact specific level, was not clearly established at the time of the violation. See Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015). \"A clearly established right is one that is 'sufficiently clear that every reasonable officer would have understood that what he is doing violates that right.' \" Id . (quoting Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) ). The Supreme Court has explained that courts must not \"define clearly established law at a high level of generality.\" Id . (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). Instead, the question is \"whether it was clearly established that the Fourth Amendment prohibited the officer's conduct in the 'situation [he or she] confronted .' \" Id . at 309 (emphasis added) (quoting Brosseau v. Haugen , 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) ). Romero does not cite to any controlling authority nor does she point to a \"robust consensus of persuasive authority\" that suggests Clark's actions were obviously unconstitutional. Morgan v. Swanson , 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc). While authority need not be exactly analogous to aid the court in determining whether a right was clearly established, \"this area is one in which the result depends very much on the facts of each case,\" and the authority must \"squarely govern[ ]\" the circumstances. Brosseau , 543 U.S. at 201, 125 S.Ct. 596. There simply" } ]

[ { "docid": "997309", "title": "", "text": "defense provides ‘ample room for mistaken judgments’ and protects all but the ‘plainly incompetent and those who knowingly violate the law.’” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). To overcome a defendant’s invocation of qualified immunity, a plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted). “If either inquiry is answered in the negative, the defendant official is entitled to summary. judgment.” Gibbs, 755 F.3d at 537. Courts are free “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. Because the answer to this inquiry is dispositive, we address only whether the right at issue was clearly established. The plaintiff bears the burden of demonstrating that a right was clearly established at the time the alleged violation occurred. Kiddy-Brown v. Blagojevich, 408 F.3d 346, 359 (7th Cir. 2005). For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S.Ct. at 308 (citation omitted). The right must be “sufficiently clear that every reasonable official would understand that what he is doing violates that right.” Id. (citation and quotation marks omitted). The Supreme Court has instructed that “clearly established law should not be defined at a high level of generality.” White v. Pauly, — U.S. —, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per cu-riam) (citation and .quotation marks omitted). While a case directly on point is not required, “the clearly established law must be ‘particularized’ to the facts of the case,” Id. at 551 (citation omitted). The Court has found that “[s]uch specificity is especially important in the Fourth Amendment context, where ... ‘it is" }, { "docid": "19628191", "title": "", "text": "do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.\" Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Put simply, qualified immunity protects \"all but the plainly incompetent or those who knowingly violate the law.\" Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). \"We have repeatedly told courts ... not to define clearly established law at a high level of generality.\" al-Kidd, supra, at 742, 131 S.Ct. 2074. The dispositive question is \"whether the violative nature of particular conduct is clearly established.\" Ibid. (emphasis added). This inquiry \" 'must be undertaken in light of the specific context of the case, not as a broad general proposition.' \" Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam ) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that \"[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.\" 533 U.S., at 205, 121 S.Ct. 2151. In this case, the Fifth Circuit held that Mullenix violated the clearly established rule that a police officer may not \" 'use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.' \" 773 F.3d, at 725. Yet this Court has previously considered-and rejected-almost that exact formulation of the qualified immunity question in the Fourth Amendment context. In Brosseau, which also involved the shooting of a suspect fleeing by car, the Ninth Circuit denied qualified immunity on the ground that the officer had violated the clearly established rule, set forth in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), that \"deadly force is only permissible where the officer has probable cause to believe that the suspect poses a threat of serious physical harm," }, { "docid": "22494374", "title": "", "text": "have known.\" White v. Pauly, 580 U.S. ----, ----, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam ) (alterations and internal quotation marks omitted). \"Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.\" Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam ). Although \"this Court's caselaw does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.\" White, 580 U.S., at ----, 137 S.Ct., at 551 (internal quotation marks omitted). \"In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law.\" Ibid. (internal quotation marks omitted). This Court has \" 'repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality.' \" City and County of San Francisco v. Sheehan, 575 U.S. ----, ----, 135 S.Ct. 1765, 1775-1776, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ); see also Brosseau, supra, at 198-199, 125 S.Ct. 596. \"[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.\" Mullenix v. Luna, 577 U.S. ----, ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam ) (internal quotation marks omitted). Use of excessive force is an area of the law \"in which the result depends very much on the facts of each case,\" and thus police officers are entitled to qualified immunity unless existing precedent \"squarely governs\" the specific facts at issue. Id., at ----, 136 S.Ct., at 309 (internal quotation marks omitted and emphasis deleted). Precedent involving similar facts can help move a case beyond the otherwise \"hazy border between excessive and acceptable force\" and thereby provide" }, { "docid": "19625936", "title": "", "text": "2074. A Under our precedents, officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was \"clearly established at the time.\" Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). \"Clearly established\" means that, at the time of the officer's conduct, the law was \" 'sufficiently clear' that every 'reasonable official would understand that what he is doing' \" is unlawful. al-Kidd, supra, at 741, 131 S.Ct. 2074 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). In other words, existing law must have placed the constitutionality of the officer's conduct \"beyond debate.\" al-Kidd, supra, at 741, 131 S.Ct. 2074. This demanding standard protects \"all but the plainly incompetent or those who knowingly violate the law.\" Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be \"settled law,\" Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam ), which means it is dictated by \"controlling authority\" or \"a robust 'consensus of cases of persuasive authority,' \" al-Kidd, supra, at 741-742, 131 S.Ct. 2074 (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ). It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. See Reichle, 566 U.S., at 666, 132 S.Ct. 2088. Otherwise, the rule is not one that \"every reasonable official\" would know. Id., at 664, 132 S.Ct. 2088 (internal quotation marks omitted). The \"clearly established\" standard also requires that the legal principle clearly prohibit the officer's conduct in the particular circumstances before him. The rule's contours must be so well defined that it is \"clear to a reasonable officer that his conduct was unlawful in the situation he" }, { "docid": "19585647", "title": "", "text": "of qualified immunity. \"Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.\" Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted). Clearly established law \"do[es] not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.\" Walker v. Schult, 717 F.3d 119, 125-26 (2d Cir. 2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). \"Although we generally look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right, the absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established so long as preexisting law clearly foreshadows a particular ruling on the issue.\" Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks and alteration omitted). Gorman argues that his report about Patricelli's misuse of the eJustice program was a matter of public concern. The district court held that the Defendants are entitled to qualified immunity because the law was not clearly established that Gorman's complaint constituted protected speech. The district court relied on two of our cases, Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), and Nagle v. Marron, 663 F.3d 100 (2d Cir. 2011). \"Exposure of official misconduct, especially within the police department, is generally of great consequence to the public.\" Jackler, 658 F.3d at 236 (citation and internal quotation marks omitted). In Jackler, the plaintiff was a probationary police officer who corroborated a civilian complaint of excessive force, and resisted pressure to conceal the misconduct. Id. at 230-31. Observing that the Fourth Amendment prohibits the use of excessive force by police, and that the misconduct at issue implicated \"public safety" }, { "docid": "22500298", "title": "", "text": "facing a potentially volatile situation. But where the officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force. II. No Clearly Established Right Although the use of excessive force violated Thompson's constitutional rights, Copeland is entitled to qualified immunity because Thompson's right not to have a gun pointed at him under the circumstances here was not clearly established at the time the events took place. In arriving at this conclusion, we take careful note of recent Supreme Court precedent illuminating the reach and parameters of qualified immunity in the excessive force context. The Supreme Court long ago laid down the principle that qualified immunity protects government officials \"from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.\" Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). For a right to be \"clearly established,\" existing \"precedent must have placed the statutory or constitutional question beyond debate ,\" such that \"every\" reasonable official, not just \"a\" reasonable official, would have understood that he was violating a clearly established right. Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (emphasis added). Thus, the \"dispositive question\" is \"whether the violative nature of particular conduct is clearly established.\" See, e.g. , Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074 ). Just last year, in a case addressing excessive force, the Supreme Court underscored that qualified immunity, when properly applied, protects \"all but the plainly incompetent or those who knowingly violate the law.\" White v. Pauly , --- U.S. ----, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (citation and internal quotation marks omitted). The Court \"reiterate[d] the longstanding principle that 'clearly established law'" }, { "docid": "23250353", "title": "", "text": "1983 Section 1983 provides a claim against anyone who “under color of any statute, ordinance, regulation, custom, or usage, of any State” violates another’s constitutional rights. 42 U.S.C. § 1983. “To state a section 1983 claim, ‘a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.’” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008) (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir.2000)). B. Qualified Immunity “The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir.2011) (en banc). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), and courts will not deny immunity unless “existing precedent ... placed the statutory or constitutional question beyond debate,” Ashcroft v. al-Kidd, — U.S.-, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). Therefore, a plaintiff seeking to overcome qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Id. at 2080 (citation omitted). A court has discretion to decide which prong to consider first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). IV. DISCUSSION On appeal, Whitley presents two theories of liability she asserts warrant reversal of the district court’s decision. First, relying on our decision in Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir.1994) (en banc), Whitley argues that Appellees are liable under § 1983 for acting with deliberate indifference to her constitutional rights by engaging in an investigation premised on catching Ariaz (the primary constitutional wrongdoer) in the act of abusing her. Second, citing to Hale v. Townley, 45 F.3d 914 (5th Cir.1995), Whitley asserts that Appellees" }, { "docid": "22531506", "title": "", "text": "minor offense of disobeying a police officer. Id., at 959-963. The court also found the law to be clearly established that Stanton's pursuit of Patrick did not justify his warrantless entry, given that Patrick was suspected of only a misdemeanor. Id., at 963-964. The court accordingly held that Stanton was not entitled to qualified immunity. Id., at 964-965. We address only the latter holding here, and now reverse. \"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). \"Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments,\" and \"protects 'all but the plainly incompetent or those who knowingly violate the law.' \" Ashcroft v. al-Kidd, 563 U.S. ----, ----, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). \"We do not require a case directly on point\" before concluding that the law is clearly established, \"but existing precedent must have placed the statutory or constitutional question beyond debate.\" al-Kidd, 563 U.S., at ----, 131 S.Ct., at 2083. There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was \"plainly incompetent\" in entering Sims' yard to pursue the fleeing Patrick. Id., at ----, 131 S.Ct., at 2085. The Ninth Circuit concluded that he was. It did so despite the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. Compare, e.g.,Middletown v. Flinchum, 95 Ohio St.3d 43, 45, 765 N.E.2d 330, 332 (2002) ( \"We ... hold today that when officers, having" }, { "docid": "19590692", "title": "", "text": "whether the constitutional right that Heishman's estate asserts was clearly established at the time Cope administered the sedative. Clearly established law \"must be 'particularized' to the facts of the case.\" White v. Pauly , --- U.S. ----, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017), quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In other words, \"existing precedent must have placed the statutory or constitutional question beyond debate.\" Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), citing Anderson , 483 U.S. at 640, 107 S.Ct. 3034, and Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Supreme Court has also taught that the issue is whether the state of the law at the time of a defendant's actions would have given the defendant \"fair warning\" that her conduct was unconstitutional. Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). In Hope , the Court denied qualified immunity and held that handcuffing a prisoner to a hitching post violated clearly established law. Hope teaches that a case directly on point is not required. Id. (\"officials can still be on notice that their conduct violates established law even in novel factual circumstances\"). Given those standards, how should courts analyze whether a right is clearly established? The Supreme Court has \"repeatedly told courts ... not to define clearly established law at a high level of generality.\" al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074 (citations omitted); see also Sanzone v. Gray , 884 F.3d 736, 741 (7th Cir. 2018) (\"reliance on the general standard for excessive force 'is not enough' because the right must be 'clearly established in a more particularized, and hence more relevant, sense' \") (internal quotation marks omitted), quoting Saucier v. Katz , 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Defining the right too broadly \"may defeat the purpose of qualified immunity.\" Abbott v. Sangamon County , 705 F.3d 706, 732 (7th Cir. 2013), citing Hagans v." }, { "docid": "9201555", "title": "", "text": "minor offense of disobeying a police officer. Id., at 959-963. The court also found the law to be clearly established that Stanton's pursuit of Patrick did not justify his warrantless entry, given that Patrick was suspected of only a misdemeanor. Id., at 963-964. The court accordingly held that Stanton was not entitled to qualified immunity. Id., at 964-965. We address only the latter holding here, and now reverse. \"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). \"Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments,\" and \"protects 'all but the plainly incompetent or those who knowingly violate the law.' \" Ashcroft v. al-Kidd, 563 U.S. ----, ----, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ). \"We do not require a case directly on point\" before concluding that the law is clearly established, \"but existing precedent must have placed the statutory or constitutional question beyond debate.\" al-Kidd, 563 U.S., at ----, 131 S.Ct., at 2083. There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was \"plainly incompetent\" in entering Sims' yard to pursue the fleeing Patrick. Id., at ----, 131 S.Ct., at 2085. The Ninth Circuit concluded that he was. It did so despite the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. Compare, e.g., Middletown v. Flinchum, 95 Ohio St.3d 43, 45, 765 N.E.2d 330, 332 (2002) ( \"We ... hold today that" }, { "docid": "20882802", "title": "", "text": "39, 46 (1st Cir.2011). In this venue, the plaintiff challenges the district court’s application of the doctrine of qualified immunity. Addressing that challenge requires us to explore the rudiments of the doctrine and thereafter test the soundness of the district court’s decision. “[(Qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). The doctrine “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, — U.S.-, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011). Thus, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). However, the doctrine is not without limits. Despite the breadth of its prophylactic sweep, “qualified immunity does not shield public officials who, from an objective standpoint, should have known that their conduct was unlawful.” Haley, 657 F.3d at 47 (internal quotation marks omitted). Qualified immunity is designed to confer protection from the travails of suit as well as from the imposition of damages. Hence, courts should evaluate claims of qualified immunity at the earliest practicable stage of litigation. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). This evaluation entails a two-part inquiry. See Haley, 657 F.3d at 47. For one thing, the court must ask “whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right.” Pearson, 555 U.S. at 232, 129 S.Ct. 808. For another thing, the court must ask “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The court need not address these two questions in any particular sequence. See id. at 242, 129 S.Ct. 808. Here, the answer" }, { "docid": "5263780", "title": "", "text": "stomach instead of leaving the dog on? A: No, sir. The undisputed facts establish that Brown’s use of force was objectively unreasonable. To be clear, we do not say that any application of force to a compliant arrestee is per se unreasonable, and we do not opine on the line of reasonableness. Instead, we state only the obvious: Under the facts in this record, permitting a dog to continue biting a compliant and nonthreatening arrestee is objectively unreasonable. B. The second part of the QI inquiry looks to whether the right was clearly established at the time of the violation. “To answer that' question in the affirmative, we must be able to point to controlling authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc) (internal quotation marks and citation omitted). But “this does not mean that ‘a case directly on point’ is required.” Id. at 372 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Rather, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at 372 (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (emphasis added)). The central concept is “fair warning.” Id. at 372; Newman, 703 F.3d at 763. “The law can be clearly established despite notable factual distinctions between the. precedents relied on. and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Newman, 703 F.3d at 763 (quoting Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (internal quotation marks omitted)). “Furthermore, ‘in an obvious case,’ the Graham excessive-force factors themselves ‘can clearly establish the answer, even without a body of relevant case law.’ ” Id. at 764 (quoting Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)) (internal quotation marks omitted). Cooper’s right was clearly established. Our caselaw makes certain that once an arrestee stops resisting, the" }, { "docid": "19590870", "title": "", "text": "what he is doing violates that right.' \" Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Reichle v. Howards , 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) ). In determining whether the law has been clearly established, there does not need to be \"a case directly on point, but existing precedent must have placed the ... constitutional question beyond debate.\" Ashcroft v. al-Kidd , 563 U.S. 731, 740, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). The Supreme Court has repeatedly admonished courts \"not to define clearly established law at a high level of generality.\" Mullenix , 136 S.Ct. at 308 (quoting al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074 ). The dispositive question is therefore \"whether the violative nature of particular conduct is clearly established\" in the specific context of the case. Id. (internal quotation marks and citation omitted). \"It is the plaintiff who bears the burden of showing that the rights allegedly violated were clearly established.\" Shafer v. County of Santa Barbara , 868 F.3d 1110, 1118 (9th Cir. 2017) (internal quotation marks and citation omitted). Here, officers confronted a reportedly erratic individual that took refuge in a 7-Eleven, cut someone with scissors, asked officers to shoot him, simulated having a firearm, and ultimately charged at officers with something in his upraised hand. The relevant inquiry is whether existing precedent placed the conclusion that officers acted unreasonably in these circumstances \"beyond debate.\" Mullenix , 136 S.Ct. at 309. It did not. See Kisela , 138 S.Ct. at 1153-54 (recently holding that the law was not clearly established where officers shot a mentally ill woman holding a kitchen knife by her side standing in close proximity to her roommate). Because Vos acted aggressively, the law was not established by either Deorle or Bryan . See S.B. v. County of San Diego , 864 F.3d 1010, 1016 n.5 (9th Cir. 2017) (refusing to extend law established in Deorle and the like to situations involving an aggressive or threatening suspect). Rather, as discussed above, the most analogous case is" }, { "docid": "19628190", "title": "", "text": "that Mullenix was not entitled to qualified immunity because \"the law was clearly established such that a reasonable officer would have known that the use of deadly force, absent a sufficiently substantial and immediate threat, violated the Fourth Amendment.\" Id., at 725. We address only the qualified immunity question, not whether there was a Fourth Amendment violation in the first place, and now reverse. The doctrine of qualified immunity shields officials from civil liability so long as their conduct \" 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). A clearly established right is one that is \"sufficiently clear that every reasonable official would have understood that what he is doing violates that right.\" Reichle v. Howards, 566 U.S. ----, ----, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotation marks and alteration omitted). \"We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.\" Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Put simply, qualified immunity protects \"all but the plainly incompetent or those who knowingly violate the law.\" Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). \"We have repeatedly told courts ... not to define clearly established law at a high level of generality.\" al-Kidd, supra, at 742, 131 S.Ct. 2074. The dispositive question is \"whether the violative nature of particular conduct is clearly established.\" Ibid. (emphasis added). This inquiry \" 'must be undertaken in light of the specific context of the case, not as a broad general proposition.' \" Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam ) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). Such specificity is especially important in the Fourth Amendment context, where the" }, { "docid": "9019609", "title": "", "text": "clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.' \" Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (alterations in original) (quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). The Court does not need \"a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.\" Id. The Court uses a standard of \"objective reasonableness\" to define \"the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest.\" Malley v. Briggs , 475 U.S. 335, 344, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Qualified immunity \"ensure[s] that before they are subjected to suit, officers are on notice their conduct is unlawful.\" Hope v. Pelzer , 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Saucier v. Katz , 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). And it \"protects 'all but the plainly incompetent or those who knowingly violate the law.' \" Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Malley , 475 U.S. at 341, 106 S.Ct. 1092 ). Clearly established law is not determined \"at a high level of generality.\" Ashcroft , 563 U.S. at 742, 131 S.Ct. 2074. Instead \"[t]he dispositive question is 'whether the violative nature of particular conduct is clearly established.' \" Mullenix , 136 S.Ct. at 308 (quoting Ashcroft , 563 U.S. at 742, 131 S.Ct. 2074 ). The inquiry must look at the specific context of the case. Id. Here, the clearly established constitutional right asserted by Junior is to be free from police arrest without a good faith showing of probable cause. Since Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), it has been clearly established that a defendant's Fourth Amendment rights are violated if (1) the affiant, in" }, { "docid": "22502969", "title": "", "text": "motion to dismiss, we \"accept[ ] the facts alleged in the complaint as true, drawing all reasonable inferences in the plaintiff's favor.\" Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010). To avoid dismissal, the \"complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.\" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A complaint is plausible on its face when it contains sufficient facts to support a reasonable inference that the defendant is liable for the misconduct alleged. Id. II. Qualified Immunity A. Standard Defendants argue that they are entitled to qualified immunity on Plaintiff's federal constitutional claims asserted under § 1983. \"Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.\" Dalrymple v. Reno , 334 F.3d 991, 994 (11th Cir. 2003) (internal quotation marks omitted). \"When properly applied, [qualified immunity] protects 'all but the plainly incompetent or those who knowingly violate the law.' \" Ashcroft v. al-Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). To be clearly established, a right must be well-established enough \"that every reasonable official would have understood that what he is doing violates that right.\" Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (internal quotation marks omitted and alteration adopted). In other words, \"existing precedent must have placed the statutory or constitutional question beyond debate\" and thus given the official fair warning that his conduct violated the law. Id . (emphasis added); Coffin v. Brandau , 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (\"The critical inquiry is whether the law provided [Defendant officers] with 'fair warning' that their conduct violated the Fourth Amendment.\"). Fair warning is most commonly provided by materially similar precedent from the Supreme Court, this Court, or the highest state court in which the case arose. See Terrell v. Smith" }, { "docid": "23250404", "title": "", "text": "but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The “clearly established” requirement does not depend on the existence of a case directly on point, however. See al-Kidd, 131 S.Ct. at 2083; see also Safford Unified Sell. Dist. No. 1 v. Redding, 557 U.S. 364, 377, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (“To be established clearly, however, there is no need that the ‘very action in question [have] previously been held unlawful.’ ” (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999))). “Rather, ‘[t]he central concept is that of fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the eases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.’ ” Morgan v. Swanson, 659 F.3d 359, 412-13 (5th Cir.2011) (en banc) (Elrod, J., dissenting) (quoting Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir.2004) (en banc)) (internal quotation marks omitted). The fair notice requirement is satisfied if controlling authority — or a “robust ‘consensus of persuasive authority’ ” — defines the contours of the right in question with a high degree of particularity. See al-Kidd, 131 S.Ct. at 2083 (quoting Wilson, 526 U.S. at 617, 119 S.Ct. 1692). Here, I would hold that Hanna lacked fair notice that his conduct would amount to a constitutional violation. Although there is no debate that a child has an inviolable right to bodily integrity, see supra Part II, our case law regarding an individual’s obligation to intervene in incidents of child sexual abuse arises almost exclusively in the context of school officials. See Taylor, 15 F.3d at 450-51; Rains, 66 F.3d at 1413. The other analogous body of law arises in bystander-liability cases, in which we require both actual presence at and acquiescence in the underlying constitutional violation. See Hale v. Townley, 45 F.3d 914 (5th Cir.1995). There simply is not enough controlling or persuasive authority to conclude" }, { "docid": "23250403", "title": "", "text": "the inquiry does not end with the plausibility of Whitley’s § 1983 claim, as Hanna asserted a qualified-immunity defense. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, - U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). Relevant here is the second prong of the inquiry: whether the constitutional right at issue was “clearly established” at the time of the challenged conduct. Id. In considering this prong, the court asks whether the law so clearly and unambiguously prohibited his conduct that “every ‘reasonable official would understand that what he is doing violates [the law].’ ” Id. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The court will not deny immunity unless “existing precedent ... placed the statutory or constitutional question beyond debate.” Id. at 2083. This doctrine protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The “clearly established” requirement does not depend on the existence of a case directly on point, however. See al-Kidd, 131 S.Ct. at 2083; see also Safford Unified Sell. Dist. No. 1 v. Redding, 557 U.S. 364, 377, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (“To be established clearly, however, there is no need that the ‘very action in question [have] previously been held unlawful.’ ” (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999))). “Rather, ‘[t]he central concept is that of fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the eases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.’ ” Morgan v. Swanson, 659 F.3d 359, 412-13 (5th Cir.2011) (en banc) (Elrod, J., dissenting) (quoting Kinney v. Weaver, 367 F.3d" }, { "docid": "19625935", "title": "", "text": "of a totality. Arvizu,supra, at 274, 122 S.Ct. 744 And here, the totality of the circumstances gave the officers plenty of reasons to doubt the partygoers' protestations of innocence. For all of these reasons, we reverse the D.C. Circuit's holding that the officers lacked probable cause to arrest. Accordingly, the District and its officers are entitled to summary judgment on all of the partygoers' claims. IV Our conclusion that the officers had probable cause to arrest the partygoers is sufficient to resolve this case. But where, as here, the Court of Appeals erred on both the merits of the constitutional claim and the question of qualified immunity, \"we have discretion to correct its errors at each step.\" Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ; see, e.g., Plumhoff v. Rickard, 572 U.S. ----, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014). We exercise that discretion here because the D.C. Circuit's analysis, if followed elsewhere, would \"undermine the values qualified immunity seeks to promote.\" al-Kidd, supra, at 735, 131 S.Ct. 2074. A Under our precedents, officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was \"clearly established at the time.\" Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). \"Clearly established\" means that, at the time of the officer's conduct, the law was \" 'sufficiently clear' that every 'reasonable official would understand that what he is doing' \" is unlawful. al-Kidd, supra, at 741, 131 S.Ct. 2074 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). In other words, existing law must have placed the constitutionality of the officer's conduct \"beyond debate.\" al-Kidd, supra, at 741, 131 S.Ct. 2074. This demanding standard protects \"all but the plainly incompetent or those who knowingly violate the law.\" Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The" }, { "docid": "22500299", "title": "", "text": "818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). For a right to be \"clearly established,\" existing \"precedent must have placed the statutory or constitutional question beyond debate ,\" such that \"every\" reasonable official, not just \"a\" reasonable official, would have understood that he was violating a clearly established right. Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (emphasis added). Thus, the \"dispositive question\" is \"whether the violative nature of particular conduct is clearly established.\" See, e.g. , Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074 ). Just last year, in a case addressing excessive force, the Supreme Court underscored that qualified immunity, when properly applied, protects \"all but the plainly incompetent or those who knowingly violate the law.\" White v. Pauly , --- U.S. ----, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (citation and internal quotation marks omitted). The Court \"reiterate[d] the longstanding principle that 'clearly established law' should not be defined at a high level of generality.\" Id. at 552 (citation omitted). And the Court cautioned that, as an \"an immunity from suit, qualified immunity is effectively lost if a case is erroneously permitted to go to trial.\" Id. at 551 (citation and internal quotation marks omitted). Looking to the particular setup here, we cannot say that every reasonable officer in Copeland's position would have known that he was violating the constitution by pointing a gun at Thompson. Thompson's nighttime, felony arrest arising from an automobile stop, in which a gun was found, coupled with a fluid, dangerous situation, distinguishes this case from our earlier precedent. More specifically, Copeland was conducting a felony arrest at night of a suspect who was not handcuffed, stood six feet tall and weighed two hundred and sixty-five pounds, was taller and heavier than Copeland, and had a prior felony conviction for unlawfully possessing a firearm. Although Thompson was cooperative, the situation was still critical in terms of potential danger to the officers, especially given that a" } ]

[ { "docid": "18313657", "title": "", "text": "than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Id. at 818, 117 S.Ct. 2312 (internal quotation marks omitted). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). In evaluating a party’s standing, this Court must determine whether the plaintiff has alleged “ ‘such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). As the party invoking federal jurisdiction, Plaintiffs bear the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If Plaintiffs cannot establish constitutional standing, their claims must be dismissed for lack of subject matter jurisdiction. Cent. States, 433 F.3d at 198. “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citations omitted). Because the standing issue goes to this Court’s subject matter jurisdiction, it can be raised sua sponte. Cent. States, 433 F.3d at 198. “To .satisfy Article Ill’s standing requirements, a plaintiff must show: ‘(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’ ” Cleveland Branch NAACP v. City of Parma, 263 F.3d 513, 523-24 (6th Cir.2001) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000))." } ]

[ { "docid": "7306680", "title": "", "text": "1547, 194 L.Ed.2d 635 (2016); Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 2661,186 L.Ed.2d 768 (2013) (explaining that Article III discusses the powers granted to the Judicial Branch and, inter aha, “confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies’ ” (quoting U.S. Const, art. Ill, § 2)). “[T]he irreducible constitutional minimum of standing” consists of “three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An appellant “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the [appellee], (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citations omitted). As to the first element, “the injury-in-fact requirement requires [an appellant] to allege an injury that is both concrete and particularized.” Id. at 1545 (internal quotation marks and citation omitted). To constitute a “concrete” injury, the harm must “actually exist,” id. at 1548 (citation omitted), or appear “imminent,” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citation omitted)—a “conjectural or hypothetical” injury will not suffice, id. (internal quotation marks and citation omitted). And an injury is “particularized” if it affects an appellant “in a personal and individual way.” Spokeo, 136 S.Ct. at 1548 (internal quotation marks and citation omitted). “[Although Article III standing is not necessarily a requirement to appear before an administrative agency,” Consumer Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258, 1261 (Fed. Cir. 2014) (citation omitted), an appellant must nevertheless supply the requisite proof of an injury in fact when it seeks review of an agency’s final action in a federal court, see Massachusetts, 549 U.S. at 517, 127 S.Ct. 1488 (explaining that, when a party appeals from a final agency action, it must demonstrate that it suffers an injury “that is either actual or imminent” (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130)). Indeed, the Supreme Court has recognized that not every party will have Article III standing in an appeal from a PTAB final written decision. See Cuozzo" }, { "docid": "21797308", "title": "", "text": "courts’ judicial powers.” Pye v. United States, 269 F.3d 459, 466 (4th Cir. 2001) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). In a class action matter, “wé analyze standing based on the allegations of personal injury made by the named plaintiff!]. Without a sufficient allegation of harm to the named plaintiff in particular, [he] cannot meet [his] burden of establishing standing.’” Beck v. McDonald, 848 F.3d 262, 269-70 (4th Cir. 2017) (citation omitted) (quoting Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011)); see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (citing Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In order to determine whether Dreher, the named plaintiff here, has standing—that is, whether he meets the “irreducible constitutional minimum” of a “case” or “con-, troversy”—we employ a familiar three-part test. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Dreher “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). The burden of establishing these elements falls on the party invoking federal jurisdiction, and all three elements áre necessary prerequisites to establish standing. See id. Here, Appellant stumbles on the first of these requirements: injury in fact. A. To establish injury in fact, “a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized.’ ” Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). In Spokeo, the Supreme Court discussed the dual requirements of particularization and concreteness. There, the plaintiff, Thomas Robins, sued Spokeo, Inc. (“Spokeo”), a company that operates an online “people search engine,” for alleged violations of the FCRA. Id. at 1544. Robins alleged that" }, { "docid": "12915948", "title": "", "text": "We conclude that the Wikimedia Allegation does and the Dragnet Allegation does not. A. 1. Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const, art. Ill, § 2. “The doctrine of standing gives meaning to these constitutional limits by ‘identifying] those disputes which are appropriately resolved through the judicial process.’ ” Susan B. Anthony List v. Driehaus, — U.S.-, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To establish standing, a plaintiff must show: (1) an injury in fact; (2) a\" sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Id. “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan, 504 • U.S. at 560, 112 S.Ct. 2130). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted). “The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Id. at 1548 n.7. The purpose of the imminence requirement “is to ensure that the alleged injury is not too speculative for Article III purposes.” Clapper, 133 S.Ct. at 1147. The “threatened injury must be certainly impending to constitute injury in fact, and ... [ajllegations of possible future injury are not sufficient.” Id. (second alteration in original) (internal quotation marks omitted). “[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct." }, { "docid": "4166011", "title": "", "text": "the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). B. Standing Great-West argues that Lorenz lacks constitutional standing to bring a prohibited transaction claim because he has not yet advanced “a plausible theory that Great-West’s actual compensation was excessive.” ECF No. 36 at 8. As a result, Great-West argues, Lorenz has not suffered any concrete harm, and “the mere existence of a technical violation of ERISA is not enough to establish Article III standing.” ECF No. 36 at 8. To have the requisite constitutional standing to bring a suit in federal court, a plaintiff must (1) have suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To establish an injury in fact, a plaintiff must show that he suffered a “concrete” (i.e., “real”) injury that “affect[ed] the plaintiff in a personal and individualized way.” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130) (internal quotation marks omitted). “The Supreme Court has made clear that when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim.” Parker v. D.C., 478 F.3d 370, 377 (D.C. Cir. 2007), aff'd sub norm D.C. v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (citing Warth v. Seldin, 422 U.S. 490, 501-02, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). And “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presumfe] that general allegations embrace those specific facts that are necessary to support the claim.’ ” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (1992) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 111" }, { "docid": "12189932", "title": "", "text": "or threatened injury required by Art. Ill may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” Pet. Br. at 20 (quoting Worth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted)). But they vastly overread that case. The Supreme Court has been clear that the legislature “cannot erase Article Ill’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing” under Article III. Spokeo, 136 S.Ct. at 1547-1548 (quoting Retines v. Byrd, 521 U.S. 811, 820 n.3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)) (internal quotation mark omitted). Instead, an asserted injury to even a statutorily conferred right “must actually exist,” Spokeo, 136 S.Ct. at 1548, and must have “affect[ed] the plaintiff in a personal and individual way,” id. at 1543 (quoting Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130). The Supreme Court’s decision in Spokeo thus closes the door on Hancock and White’s claim that the Stores’ mere request for a zip code, standing alone, amounted to an Article III injury. Spokeo held that plaintiffs must have suffered an actual (or imminent) injury that is both particularized and “concrete * * * even in the context of a statutory violation.” 136 S.Ct. at 1549. For that reason, a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. The plaintiff must allege some “concrete- interest” that is “de facto,” “real,” and “actually exist[s].” See id. at 1548, 1549. Accordingly, while a legislature may “‘elevat[e] to the status of legally cognizable injuries concrete, defacto injuries that were previously inadequate in law,’ ” the legislature cannot dispense with the constitutional baseline of a concrete injury in fact. Spokeo, 136 S.Ct. at 1549 (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130) (alteration in Spokeo). Indeed, the Supreme Court cautioned in Spokeo that some statutory violations could “result in no harm,” even if they involved producing information in a way that violated the law. 136 S.Ct. at" }, { "docid": "19534173", "title": "", "text": "ABM's motion to dismiss the complaint because Bassett failed to allege a sufficiently concrete injury. In dismissing the case with prejudice, the court concluded that Bassett alleged nothing more than a \"possible risk of [identity] theft.\" Citing the Supreme Court's watershed decision on standing, Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), the district court emphasized that \"[s]omething more is necessary\" to allege a concrete injury in fact, because \"not every procedural violation gives rise to standing.\" Analysis I. SPOKEO AND DECISIONS OF OUR SISTER CIRCUITS At its core, standing is \"an essential and unchanging part of the case-or-controversy requirement of Article III.\" Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Our analysis of this threshold issue begins with Spokeo . 136 S.Ct. 1540. To have standing, Bassett must allege that he \"(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of [ABM], and (3) that is likely to be redressed by a favorable judicial decision.\" Id. at 1547. An injury in fact is \" 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' \" Id. at 1548 (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). This appeal turns on whether Bassett alleged a concrete injury in fact. Spokeo , like this case, involved a putative consumer class action alleging willful violations of the FCRA. Robins claimed that Spokeo, a consumer reporting agency, published inaccurate credit report information about him, in violation of the FCRA. Id. at 1545-46. The district court dismissed the complaint for lack of standing, but we reversed. Id. at 1546. Because Robins alleged that \"Spokeo violated his statutory rights, not just the statutory rights of other people,\" and Robins's \"personal interests in the handling of his credit information are individualized rather than collective,\" we concluded that Robins's \"alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III.\" Id. (quoting Robins v. Spokeo , Inc.," }, { "docid": "12997438", "title": "", "text": "Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Plaintiff, as the party invoking federal jurisdiction, has the burden of demonstrating each element. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’- each element.” Spokeo, 136 S.Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The existence of Article III standing often turns on the injury-in-fact element. Spokeo, 136 S.Ct. at 1547. To establish injury-in-fact, “a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal citations omitted). To be “concrete,”' an injury must be “real” as opposed to “abstract,” but it need not be “tangible.” Id. at 1548-49. In Spokeo, the Supreme Court recently addressed whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm and who, therefore, could not otherwise invoke the jurisdiction of a federal court by authorizing a private right of action based on a bare violation of & federal statute. 136 S.Ct. 1540. The Spokeo Court held that “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. As the Supreme Court explained, “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. In other words, Congress’ decision that there should be a legal remedy for the violation of a particular statute does not mean that" }, { "docid": "7306679", "title": "", "text": "in their briefs.” Phigenix, Inc. v. ImmunoGen, Inc., No. 2016-1544 (Fed. Cir. Apr. 20, 2016) (order denying ImmunoGens MTD). In its response brief, ImmunoGen argues anew that Phigenix lacks standing, Appellee’s Br. 29-37, and Phigenix again opposes, Appellant’s Br. 24-25 (incorporating the arguments made in Phigenix’s Resp. to MTD); Appellant’s Reply 3-16. “We have an obligation to assure ourselves of litigants’ standing under Article III” of the Constitution, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks and citation omitted), including when a party appeals from a final agency action, see Massachusetts v. EPA, 549 U.S. 497, 505-06, 516-26, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). As the party seeking judicial review, Phigenix bears the burden of establishing that it has standing. See DaimlerChrysler, 547 U.S. at 342, 126 S.Ct. 1854. A. General Article III Standing Requirements “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy” required by Article III. Spokeo, Inc. v. Robins, — U.S.-, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016); Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 2661,186 L.Ed.2d 768 (2013) (explaining that Article III discusses the powers granted to the Judicial Branch and, inter aha, “confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies’ ” (quoting U.S. Const, art. Ill, § 2)). “[T]he irreducible constitutional minimum of standing” consists of “three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An appellant “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the [appellee], (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citations omitted). As to the first element, “the injury-in-fact requirement requires [an appellant] to allege an injury that is both concrete and particularized.” Id. at 1545 (internal quotation marks and citation omitted). To constitute a “concrete” injury, the harm must “actually exist,” id. at 1548 (citation omitted), or appear “imminent,” Lujan, 504 U.S. at 560, 112" }, { "docid": "12862441", "title": "", "text": "prove that it has constitutional standing. Specifically, under the “case or controversy” requirement of Article III of the United States Constitution, a party “must have a ‘personal stake in the outcome of the controversy5 ” to have standing. Breeden v. Kirkpatrick & Lockhart, LLP, 268 B.R. 704, 708 (S.D.N.Y. 2001) (citation omitted), aff'd sub nom. Breeden v. Kirkpatrick & Lockhart LLP (In re Bennett Funding Grp.), 336 F.3d 94 (2d Cir. 2003). Similar to the prudential standing requirements, “[a] party can only assert its own legal rights and cannot assert the rights of third-parties.” Id. Furthermore, “[t]he Article] III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To prove constitutional standing, a party must establish “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” See Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401-02, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (explaining that the theory of future injury is “too speculative to satisfy the well-established requirement that threatened injury must be certainly impending” and that a party “cannot manufacture standing by choosing to make expenditures based on hypothetical future harm”) (internal quotation marks omitted). Non-parties to a contract ordinarily do not have a “concrete and particularized injury.” See In re Caldor, Inc. NY, 193 B.R. 182, 186 (Bankr. S.D.N.Y. 1996) (concluding that a bank that was lender to the landlord of a site leased to the debtor lacked constitutional standing to contest the debtor’s motion for order authorizing the debtor to lease a new site); see also Savage & Associates, P.C. v. Mandl (In re Teligent, Inc.), 417 B.R. 197, 210 (Bankr. S.D.N.Y. 2009) (noting that a non-party could not challenge the settlement agreement because" }, { "docid": "10883653", "title": "", "text": "this appeal pursuant to 28 U.S.C. § 1291. We review de novo the issue of whether a party has standing. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir. 2015). We also review de novo a district court’s decision to deny leave to amend for futility. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam). DISCUSSION I. Standing CNN argues Perry has not alleged a legally cognizable injury in the light of the Supreme Court’s decision in Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) because Perry’s alleged violation of a statutory right is not on its own sufficiently concrete. Federal jurisdiction is circumscribed by the case or controversy requirement of Article III of the Constitution, essential to which is the doctrine of standing. U.S. Const, art. III, § 2, cl. 1; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To demonstrate standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547. An injury in fact is both “concrete and partic ularized” as well as “actual or imminent, not conjectural or hypothetical[J” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In Spokeo, the Supreme Court vacated the decision of the Court of Appeals and remanded the issue of whether a plaintiff sufficiently alleged a concrete injury where the plaintiff claimed a statutory violation of the Fair Credit Reporting Act (“FCRA”). 136 S.Ct. at 1545-46. The plaintiff alleged that a website had published inaccurate information about him. Id, at 1544. The Supreme Court emphasized that in addition to being particularized, intangible injuries, including statutory violations, must still be concrete. Id, at 1548 (“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”). The Supreme Court stated that “both" }, { "docid": "781922", "title": "", "text": "and (3)that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. -, -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). We.address these elements in turn. 1. Injury in Fact An injury in fact requires ‘“an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 578 U.S. at -, 136 S.Ct. at 1548, quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130. The interest at issue need not rise to the level of a right, let alone a constitutional right. See Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130 (“Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”). Matushkina had an interest in her admissibility to the United States, and the injury to that interest is apparent on the face of the complaint. The CBP officer entered the inadmissibility finding in the lookout system, Matushkina’s nonimmi-grant visa was cancelled, and a U.S. Consulate later denied Matushkina’s request for an immigrant visa because of the earlier inadmissibility determination. Matushki-na also satisfies the other components of an injury in fact. Her injury is concrete because it “actually exist[s],” Spokeo, 578 U.S. at -, 136 S.Ct. at 1548, and it is particularized because it “affect[s her] in a personal and individual way,” id., quoting Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130. Her injury is not hypothetical or conjectural. The district court reasoned that Ma-tushkina lacked standing because she is an alien who “has no right of entry into the United States, and no cause of action to press in furtherance of [her] claim for admission.” A right of entry, however, is not a prerequisite to standing in the case of someone seeking entry to the United States. See Stenographic Machs., Inc. v. Reg’l Adm’r for Emp’t & Training, 577 F.2d 521, 528 (7th Cir. 1978) (alien employee who, presumably, was" }, { "docid": "19505485", "title": "", "text": "interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.\" Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted). Second, \"there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant.\" Id. (alterations adopted) (internal quotation marks omitted). Third, \"it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.\" Id. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). Each element of standing is \"an indispensable part of the plaintiff's case\" and \"must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation.\" Id .\"While the proof required to establish standing increases as the suit proceeds, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.\" Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (citation omitted). To satisfy its burden at the pleading stage, a plaintiff must \"clearly allege facts demonstrating each element,\" Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (alteration adopted) (citation and internal quotation marks omitted), and we evaluate standing on a motion to dismiss based on the facts alleged in the complaint, Houston v. Marod Supermarkets, Inc. , 733 F.3d 1323, 1335 (11th Cir. 2013). To adequately allege injury in fact, it is not enough that a complaint \" 'sets forth facts from which we could imagine an injury sufficient to satisfy Article III's standing requirements,' since 'we should not speculate concerning the existence of standing, nor should we imagine or piece together an injury sufficient to give plaintiff standing when it has demonstrated none.' \" Bochese v. Town of Ponce Inlet , 405 F.3d" }, { "docid": "12677518", "title": "", "text": "federal judicial power to certain ‘cases’ and ‘controversies,’ and the ‘irreducible constitutional minimum’ of standing contains three elements.” Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The first of these three elements is that the plaintiff must have suffered an “ ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 698, 145 L.Ed.2d 610 (2000). The injury must also be “fairly traceable to the challenged action of the defendant” and redressable through judicial action. Id. In May 2016, the Supreme Court decided Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). In Spokeo, the Supreme Court explained that to establish Article III standing, a plaintiff must show not only that he or she was personally affected by the alleged wrongdoing, i.e., a “particularized” injury, but also that he or she suffered a “concrete” injury—i.e., a “de facto” or “real” injury that “actually exist[s].” 136 S.Ct. at 1548. The Spokeo Court explained that “‘[c]oncrete’ is not... necessarily synonymous with ‘tangible,’ ” observing that while “tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.” Id. at 1549. To identify whether an intangible injury is concrete, “both history and the judgment of Congress play important roles.” Id. at 1549. The Spokeo Court explained: [I]t is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Id. (citations omitted). In other words, the Spokeo Court instructed that while a bare procedural statutory violation is insufficient to confer standing, a statutory violation that invokes" }, { "docid": "19591704", "title": "", "text": "explained in a standing to sue analysis, it \"is established that a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.\" See Nanni v. Aberdeen Marketplace, Inc. , 878 F.3d 447, 452 (4th Cir. 2017) (internal quotation marks and citations omitted). Challenges to subject-matter jurisdiction can be presented either facially or factually. See Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009). In this litigation, the NBEO interposes facial challenges to the Plaintiffs' jurisdictional allegations with respect to the first two standing to sue elements. The NBEO contends that the Complaints, on their face, fail to make allegations sufficient to satisfy the Plaintiffs' burden of establishing that they suffered an injury-in-fact that is fairly traceable to the conduct of the NBEO. See Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). Because injury-in-fact and traceability are the only standing elements challenged by the NBEO, we focus on those two elements. 1. First, we assess the injury-in-fact question. To establish an injury-in-fact, the Plaintiffs must show that they \"suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' \" See Spokeo , 136 S.Ct. at 1548 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). As we explained in Beck , while it is true that threatened rather than actual injury can satisfy Article III standing requirements, ... not all threatened injuries constitute an injury-in-fact. Rather, as the Supreme Court has emphasized repeatedly, an injury-in-fact must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is distinct and palpable, as opposed to merely abstract. See Beck , 848 F.3d at 271 (internal quotation marks and citations omitted). As we also explained, the imminence of an injury, although \"concededly a somewhat elastic concept, ... cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not" }, { "docid": "22483041", "title": "", "text": "Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005). Under the U.S. Constitution, federal courts may hear only certain \"cases\" or \"controversies.\" U.S. Const. art. III, § 2. This \"case-or-controversy requirement\" means that a plaintiff must have \"standing,\" or a sufficient interest in a live dispute, to sue in federal court. See Spokeo, Inc. v. Robins, --- U.S. ----, 136 S.Ct. 1540, 1546-47, 194 L.Ed.2d 635 (2016). At its \"irreducible constitutional minimum,\" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), standing consists of three elements: To establish Article III standing, [Plaintiffs] must demonstrate: \"(1) injury-in-fact, which is a concrete and particularized harm to a legally protected interest; (2) causation in the form of a fairly traceable connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.\" Allco Fin. Ltd. v. Klee, 861 F.3d 82, 95 (2d Cir. 2017) (quoting W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008) ); accord Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. The \"first and foremost\" of these three requirements, \"injury-in-fact\" requires a plaintiff to \"show that he or she suffered an invasion of a legally protected interest that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' \" Spokeo, Inc. v. Robins, --- U.S. ----, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (internal quotation marks and citation omitted) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ). To be \"imminent,\" the injury must be \"certainly impending\"; \"allegations of possible future injury are not sufficient.\" Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (internal quotation marks, alteration, and citation omitted). The second and third requirements, \"causation\" and \"redressability,\" require a plaintiff to demonstrate that the \"injury-in-fact\" he or she suffers is \"fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable decision.\" Lexmark Int'l, Inc. v." }, { "docid": "16142200", "title": "", "text": "Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The heartland of constitutional standing is composed of the familiar amalgam of injury in fact, causation, and redressability. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. In our view, the case at hand hinges on the presence or absence of a plausibly pleaded injury in fact. Such an injury “must be both ‘concrete and particularized and actual or imminent, not conjectural or hypothetical.’ ” Van Wagner Bos., 770 F.3d at 37 (quoting Susan B. Anthony List v. Driehaus, — U.S. —, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)). The Supreme Court recently has emphasized that concreteness and particularization are distinct requirements. An injury is concrete only if it “actually exist[s].” Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 1543, 194 L.Ed.2d 635 (2016). For example, when an alleged injury is nothing more than “a bare procedural violation,” there may be no cognizable harm to the plaintiff and thus no concreteness. Id. at 1549-50. The particularization requirement is a different matter: it necessitates that a plaintiff has been affected “in a personal and individual way” by the injurious conduct. Id. at 1548 (quoting Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130). The particularization element of the injury-in-fact inquiry reflects the commonsense notion that the party asserting standing must not only allege injurious conduct attributable to the defendant but also must allege that he, himself, is among the persons injured by that conduct. See Lujan, 504 U.S. at 563, 112 S.Ct. 2130. The requirement that a plaintiff must adduce facts demonstrating that he himself is adversely affected guarantees that “the decision as to whether review will be sought [is] in the hands of those who have a direct stake in the outcome,” Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and ensures that disputes are settled “in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action,” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State," }, { "docid": "12997437", "title": "", "text": "“print[ing] more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” Id. at § 1681c(g)(l). In enacting FACTA, Congress was attempting to- combat identity theft by reducing the personal data printed on credit ánd debit card receipts. Fair and Accurate Credit. Transactions Act of 2003, Pub. L. No. 108-159, 117 Stat. 1952 (2003); S. Rep. No. 108-166, at 13 (2003). Those violating FACTA may be liable under the two-tiered system of liability set forth in the FCRA. See 15 U.S.C. § 1681n. A plaintiff may recover actual damages resulting from a negligent violation, see id. at § 1681o(a), or actual, statutory, and/or punitive damages for a willful violation. See id. at § 1681n(a). A plaintiff invoking federal jurisdiction bears the burden of establishing the “irreducible constitutional minimum” of standing by demonstrating (1) an injury-in-fact, (2) fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Plaintiff, as the party invoking federal jurisdiction, has the burden of demonstrating each element. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’- each element.” Spokeo, 136 S.Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The existence of Article III standing often turns on the injury-in-fact element. Spokeo, 136 S.Ct. at 1547. To establish injury-in-fact, “a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). “For an injury to be particularized, it must affect the plaintiff in a" }, { "docid": "21804195", "title": "", "text": "their DPPA claim, because they have not demonstrated an injury in fact. Scherf and the city contend that a statutory violation alone is not an injury in fact, and that Jennifer’s professed anxiety from knowing that Scherf improperly accessed her personal information is not sufficiently concrete to constitute an injury in fact under Article III. We review standing de novo. Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 929 (8th Cir. 2016). To demonstrate Article III standing, a plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). An injury in fact must be both particularized to the plaintiff and also concrete— real, not abstract. Id. at 1548. Congress cannot supplant Article Ill’s standing requirements by conferring a statutory right to sue on a plaintiff who would not otherwise have standing. Id. at 1547-48. But .Congress may elevate de facto concrete injuries, whether tangible or intangible, into legally cognizable injuries. Lujan v. Defs. of Wildlife, 504 U.S. 555, 578, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To determine whether an intangible harm counts as an injury in fact, we must consider Congress’ judgment and whether the alleged intangible harm has a close relationship to a harm that traditionally provided a basis for suit in the Anglo-American legal system. Spokeo, 136 S.Ct. at 1549. In light of those considerations, we conclude that the Heglunds have standing to bring their DPPA claim. An individual’s control of information concerning her person—the privacy interest the Heglunds claim here—was a cognizable interest at common law. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Pichler v. UNITE, 542 F.3d 380, 388 (3d Cir. 2008); cf. Braitberg, 836 F.3d at 930. In enacting the DPPA, Congress recognized the potential harm to privacy from state officials accessing drivers’ personal information for improper reasons. See Maracich" }, { "docid": "21683438", "title": "", "text": "federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). “[T]o satisfy Article Ill’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “At this very preliminary stage of the litigation, [Plaintiffs] may rely on the allegations in their [amended complaint] and whatever other evidence they submitted in support of their [preliminary injunction] motion to meet their burden.” Washington, 847 F.3d at 1159; see Lujan, 504 U.S. at 561, 112 S.Ct. 2130. The district court determined that both the State of Hawai'i and Dr. Elshikh have standing to pursue their Establishment Clause claim. See Hawai‘i TRO, — F.Supp.3d at ---, 2017 WL 1011673, at *7-10. The Government argues that Plaintiffs fail to satisfy the requirements of Article III standing to bring their Establishment Clause claim. Plaintiffs must establish standing for each of their claims. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). As we do not reach Plaintiffs’ Establishment Clause claim, we address only whether Plaintiffs have standing to challenge E02 based on their INA-based statutory claim and conclude that they do. 1 Dr. Elshikh is an American citizen of Egyptian descent. He alleges that E02 will prevent his mother-in-law from obtaining a visa to reunite with her family. His mother-in-law is a Syrian national currently living in Syria; she last visited her family in Hawai'i in 2005 and has not yet met two of her five grandchildren. Dr. Elshikh’s wife filed an 1-130 Petition for Alien" }, { "docid": "15352714", "title": "", "text": "Defendant to make the phone calls. (Id.) She asserts that she has suffered an injury-in-fact because minutes were deducted from her cell phones as a result of Defendant’s calls. (Id. at 11.) There are three types of standing: statutory, constitutional, and prudential. “Statutory standing is simply statutory interpretation: the question it asks is whether Congress has accorded this injured plaintiff the right to sue the defendant to redress his injury.” Graden v. Conexant Sys. Inc., 496 F.3d 291, 295 (3d Cir.2007) (emphasis in original). “Constitutional and prudential standing are about, respectively, the constitutional power of a federal court to resolve a dispute and the wisdom of so doing.” Id. The parties do not dispute that Plaintiff has statutory standing under the TCPA. (See ECF No. 61 at 27.) The Court will separately address constitutional and prudential standing. a. Constitutional Standing Under Article III, constitutional standing requires a plaintiff to show that: (1) he or she suffered an injury-in-fact, that is “concrete and particularized” and “actual or imminent,” and not merely “conjectural or hypothetical;” (2) the defendant’s complained of conduct caused that injury; and (3) it is likely, “as opposed to merely speculative,” that a favorable decision by the court will redress the injury. Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir.2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The plaintiff bears the burden of establishing constitutional standing. Id. The Supreme Court recently explained that “[f]or an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, — U.S.-, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (internal quotations omitted). The injury-in-fact must also be “concrete,” which means “real” and “not abstract.” Id. at 1556. However, “concrete” is not necessarily synonymous with “tangible.” Id. “[B]ecause Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.” Id. at 1555. The Supreme Court emphasized that “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatical" } ]

[ { "docid": "22126653", "title": "", "text": "to Burlington. This testimony hardly outweighs the lack of any evidence of similar pressure on Esprit, a not insignificant omission in an action which alleges that Federated conspired with Esprit. In any event, we need not consider such evidence because Burlington cannot rely on inadmissible hearsay in opposing a motion for summary judgment, see Oreck Corp. v. Whirlpool Corp., 639 F.2d 75, 80-81 (2d Cir.1980); Filco v. Amana Refrigerator, Inc., 709 F.2d 1257, 1267 (9th Cir.1983); Contemporary Mission, Inc. v. U.S. Postal Service, 648 F.2d 97, 105 n. 11 (2d Cir.1981); Price v. Worldvision Enterprises, Inc., 455 F.Supp. 252, 266 n. 25 (S.D.N.Y.1978); Lyon Ford, Inc. v. Ford Motor Co., 342 F.Supp. 1339, 1343 (S.D.N.Y.1971), absent a showing that admissible evidence will be available at trial. Burlington has made no such showing. In Reborn, we recently considered an appeal similar to the present matter. In that case, a discount retailer claimed that a manufacturer discontinued it because of complaints from other retailers. In Reborn, there was evidence of: 1) direct complaints by competing retailers to the manufacturer about the plaintiff’s discounting; 2) pressure from the manufacturer to follow a suggested retail price list; 3) complaints from the manufacturer to the plaintiff regarding the plaintiff’s discounting. Reborn, 590 F.Supp. at 1432-34. Nonetheless, we affirmed the district court’s conclusion that, in light of Monsanto, none of this evidence created a genuine issue over the existence of a conspiracy between the manufacturer and the other retailers to fix prices and that “[t]he evidence proffered by Reborn would demonstrate at most exposition, persuasion, argument, or pressure, which are alone insufficient to establish coercion.” Id. at 1440. Burlington’s showing here is considerably less persuasive. 2. Burlington’s Need for More Discovery Burlington opposed the motion for summary judgment on the grounds that it needed more time to conduct discovery. On appeal, it relies upon Rule 56(f), Fed.R. Civ.P., which states: Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or" } ]

[ { "docid": "23088039", "title": "", "text": "that it is more likely than not that (1) the conspiracy existed; (2) the declarant and the defendant against whom the conspirator’s statement is offered were members of the conspiracy; and (3) the statement was made during the course of and in furtherance of the objects of the conspiracy.” United States v. Petersen, 611 F.2d 1313, 1330 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980). The independent evidence rule “is not limited to criminal cases, but applies to civil cases as well.” Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1267 (9th Cir. 1983), cert. dismissed, — U.S. -, 104 S.Ct. 385, 78 L.Ed.2d 331 (1983). When the determination is made at the initial stage of the proceedings, as here, the conspiracy must be shown by substantial independent evidence. We have defined substantial independent evidence as more than a mere scintilla, and such evidence as a reasonable mind would accept as adequate to support a conclusion. Petersen, 611 F.2d at 1330 n. 1. Under this standard, we concur with the district court’s determination that the proposed surveys did not constitute sufficient independent evidence to establish Mauldin’s participation in a price fixing conspiracy, and that the hearsay statements therefore were not admissible against him. We accordingly affirm the summary judgment in favor of Mauldin. B. Conspiracy Evidence With Respect To Montgomery Ward Montgomery Ward contends that the trial court erred in denying its motion for directed verdict because the record contains insufficient admissible evidence of its participation in the alleged price fixing conspiracy. While this appeal was pending, the Supreme Court specifically addressed the quantum of conspiracy evidence required to raise a jury issue when a plaintiff dealer alleges that he was terminated by a manufacturer pursuant to a vertical agreement to maintain resale prices. See Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Although the Court in Monsanto was concerned with conspiracy evidence sufficient to avoid a directed verdict for a defendant manufacturer, rather than a defendant dealer-competitor such as Montgomery Ward, the analysis in Monsanto" }, { "docid": "18664274", "title": "", "text": "of the University of California v. American Broadcasting Companies, Inc., 747 F.2d 511, 522 (9th Cir.1984) (Beezer, J., dissenting); see Olsen v. Progressive Music Supply, Inc., 703 F.2d 432, 437 (10th Cir.), cert. denied, 464 U.S. 866, 104 S.Ct. 197, 78 L.Ed.2d 172 (1983). C. THE ALLEGED RESTRAINTS 1. PRICE FIXING Price fixing agreements are per se violations of the antitrust laws. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); King & King Enterprises v. Champlin Petroleum Co., 657 F.2d 1147, 1151 (10th Cir.1981), cert. denied, 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1982); Bryan v. Stillwater Board of Realtors, 578 F.2d 1319 (10th Cir.1977). A price-fixing arrangement, whether horizontal or vertical, need not set a fixed and specific price; any combination or conspiracy “formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce” is illegal per se. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221-22, 60 S.Ct. 811, 843-44, 84 L.Ed. 1129 (1940); Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 763, 104 S.Ct. 1464, 1470, 79 L.Ed.2d 775 (1984); Albrecht v. Herald Co., 390 U.S. 145, 152-53, 88 S.Ct. 869, 872-74, 19 L.Ed.2d 998 (1968); see Simpson v. Union Oil Co., 377 U.S. 13, 20-21, 84 S.Ct. 1051, 1056-57, 12 L.Ed.2d 98 (1964); cf. United States v. Parke, Davis & Co., 362 U.S. 29, 45-47, 80 S.Ct. 503, 512-13, 4 L.Ed.2d 505 (1960); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1477 (10th Cir., cert. denied, — U.S. -, 106 S.Ct. 77, 88 L.Ed.2d 63 (1985); AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1205-06 (10th Cir.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983). However, “[n]ot all arrangements among actual or potential competitors that have an impact on price are per se violations of the Sherman Act or even unreasonable restraints.” Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 23, 99 S.Ct. 1551, 1564," }, { "docid": "23088041", "title": "", "text": "governs our resolution of Montgomery Ward’s argument. The issue before us requires that we integrate the standards of Monsanto with the rule, discussed above in Part III A, that a co-conspirator’s hearsay statements are inadmissible against a defendant absent independent evidence of a conspiracy involving that defendant. In Monsanto the Court held that a jury may not be permitted to infer an agreement “merely from the existence of complaints, or even from the fact that termination came about ‘in response to’ complaints,” id. 104 S.Ct. at 1470, because this evidence, without more, does not indicate concerted action. The Court noted that although evidence of complaints does have some probative value, “the burden remains on the antitrust plaintiff to introduce additional evidence sufficient to support a finding of an unlawful contract, combination, or conspiracy,” id. 104 S.Ct. at 1471 n. 8, and “that tends to exclude the possibility that the manufacturer and nonterminated distributors were acting independently.” Id. 104 S.Ct. at 1471. “[Ejvidence must be presented both that the distributor communicated its acquiescence or agreement, and that this was sought by the manufacturer.” Id. 104 S.Ct. at n. 9. Here the district judge held extensive pretrial hearings to determine whether the taped telephone conversations were admissible against Montgomery Ward, and concluded that sufficient independent evidence existed of a conspiracy between La-Z-Boy and Montgomery Ward to admit the tapes under Fed.R.Evid. 801(d)(2)(E). With the benefit of Monsanto, we must disagree. If Montgomery Ward independently set its own prices, and if La-Z-Boy unilaterally decided to terminate World of Sleep for refusing to keep its prices up, no conspiracy existed between Montgomery Ward and La-Z-Boy. The only independent evidence of a conspiracy between them is precisely that which was held to be insufficient to raise a conspiracy fact issue in Monsanto — complaints by a dealer who competes with the price cutting plaintiff, and action in response by the manufacturer adverse to the price cutter. Under Monsanto this evidence does not tend to exclude the possibility that La-Z-Boy and Montgomery Ward were acting independently. World of Sleep presented no other evidence that La-Z-Boy sought" }, { "docid": "9929053", "title": "", "text": "refusal to consider certain hearsay and double hearsay statements as evidence of conspiracy. Id. at 1344-47. We have reviewed the district court’s evidentiary rulings and find no error. Without a showing that admissible evidence will be available at trial, a party may not rely on inadmissible hearsay in opposing a motion for summary judgment. Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) and cases cited therein. Evidence of dealer complaints about the price-cutting practices of a competing dealer, followed by termination of the competitor, provides insufficient proof of antitrust conspiracy. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 763 — 64, 104 S.Ct. 1464, 1470-71, 79 L.Ed.2d 775 (1984). In the absence of other independent evidence establishing the existence of a conspiracy, appellant’s reliance on FED. R. EVID. 801(d)(2)(E) as the basis for admission of alleged coconspirator statements is misplaced. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, — U.S.-, 106 S. Ct. 77, 88 L.Ed.2d 63 (1985). In addition, we find no error in the district court’s conclusion that one of the statements failed to qualify as a declaration against interest, FED.R.EVID. 804(b)(3), and that all lacked sufficient indicia of trustworthiness to warrant their introduction under the discretionary exceptions to the hearsay rule, FED.R. EVID. 803(24) and 804(b)(5). While summary judgment is to be used sparingly in antitrust litigation, it is appropriate when, as in this case, the non-moving party is unable to establish a genuine issue of material fact on which to proceed to trial. Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480, 486 (5th Cir.1984); Transource International, Inc. v. Trinity Industries, Inc., 725 F.2d 274, 279 (5th Cir.1984). Accordingly the judgment of the district court is affirmed. . The Honorable Harry H. MacLaughlin, United States District Judge for the District of Minnesota. . Pink Supply Corp. v. Hiebert, Inc., 612 F.Supp. 1334 (D.Minn.1985). . Under section 1 of the Sherman Act, a “contract, combination * * * or conspiracy, in restraint of trade * * * is" }, { "docid": "22562836", "title": "", "text": "plaintiffs were injured as a proximate result of that conspiracy. Tunis Brothers v. Ford Motor Co., 763 F.2d 1482, 1489 (3d Cir.1985). The presence of concerted action is thus an essential element of a claim under Section 1; mere unilateral or independent activity, whatever its motivation, cannot give rise to an antitrust violation. Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 473 (3d Cir.1985). Appellants’ theory of recovery is based on allegations of a “vertical” combination between Mercedes and its dealers to fix the price of labor for repairs. Brief for Appellants at 27. The requisite elements of proof to establish a violation of section 1 on this theory are well established. Because “[a] manufacturer and its distributors have legitimate reasons to exchange information about the price and the reception of [their] products in the market,” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984), “the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others ‘had a conscious commitment to a common scheme designed to achieve an unlawful objective’ ”. Id. at 764, 104 S.Ct. at 1471 (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir. 1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981)). In addition, a section 1 plaintiff must introduce “evidence that tends to exclude the possibility that the manufacturer and ... distributors were acting independently.” Monsanto, 465 U.S. at 764, 104 S.Ct. at 1471. The documentary evidence introduced by appellants was certainly sufficient to demonstrate an opportunity for conspiracy between Mercedes and its dealers. Appellants did not, however, conclusively “exclude the possibility” that Mercedes’ dealers “were acting independently” in setting their prices for repair work. See Monsanto, 465 U.S. at 764, 104 S.Ct. at 1471. Based upon the documentary evidence alone, because appellants did not exclude the possibility of independent action, it cannot reasonably be said that “the moving party is entitled to a judgment as a matter of law.” Rule 56(c), F.R. Civ. P." }, { "docid": "18789424", "title": "", "text": "held justified by the manufacturer’s concern over free riding by mail order dealers). The dealers’ evidence of a price-fixing conspiracy consisted of (1) complaints to Apple about mail order dealers’ price discounts; (2) the outright and sudden elimination of mail order sales and termination of those dealers who continued such sales; (3) several meetings involving dealer and manufacturer representatives in which mail order discounting was allegedly raised; (4) a conversational statement by Apple’s president that while he could not legally discuss pricing, something was going to be done about price erosion; (5) an incident in which Apple allegedly coerced mail order dealers to “get their prices up;” (6) Apple’s alleged conditioning of new locations for mail order dealers upon their agreement to cease discounting; and (7) Apple’s' alleged agreement with one of the plaintiffs to not advertise prices. The district’court reviewed all of these allegations, O.S.C., 601 F.Supp. at 1287-89, and concluded there was insufficient evidence to support an inference of concerted action between Apple and its dealers, id. at 1295. We agree. There is no dispute that Apple received voluminous complaints from its dealers on many issues, including mail order dealers and price discounters. Virtually every dealer, including appellants, submitted complaints to Apple. Such communication alone cannot support a finding of an antitrust conspiracy. Monsanto, 465 U.S. at 762, 104 S.Ct. at 1470; Pumps & Power Co. v. Southern States Indus., Inc., 787 F.2d 1252, 1257 (8th Cir.1986). Further, both discounting and complaints continued after the mail order prohibition. There is no dispute Apple instituted a mail order ban and thereafter terminated violaters. Nonetheless, complaints followed by termination are not enough to provide sufficient proof of an antitrust conspiracy. Monsanto, 465 U.S. at 764, 104 S.Ct. at 1470; Pink Supply Co. v. Hiebert, Inc., 788 F.2d 1313, 1319 (8th Cir.1986); Filco, 709 F.2d at 1263. There was no evidence that price discounting was a formal topic of discussion at meetings attended by Apple representatives. In fact, the district court found that Apple forbade discussion of price and mail order issues at Dealer Council meetings. O.S. C., 601 F.Supp. at" }, { "docid": "9929052", "title": "", "text": "anticompetitive purpose to be served and active participation by both parent corporation and wholly owned subsidiary in accomplishing that purpose, the two are not legally capable of combination or conspiracy within the meaning of section 1). We conclude, therefore, that the district court was correct in applying the Morton Buildings and Green test, rather than the Albrecht and International Travel test, concerning the agents’ capacity to conspire with Hiebert. Moreover, we agree with the district court that the representatives did not exceed the scope of their authority or act for their own economic benefit in recommending appellant’s termination. We find no evidence in the record which would support a conclusion to the contrary. II. As an alternative theory, Pink Supply alleges a conspiracy between Dayton’s and Hiebert or between Dayton’s and the combined entity of Hiebert and the representatives. The district court found insufficient admissible evidence that these actors combined to procure appellant’s termination so as to fix prices in Hiebert furniture. Pink Supply, supra, 612 F.Supp. at 1342-47. Appellant objects to the district court’s refusal to consider certain hearsay and double hearsay statements as evidence of conspiracy. Id. at 1344-47. We have reviewed the district court’s evidentiary rulings and find no error. Without a showing that admissible evidence will be available at trial, a party may not rely on inadmissible hearsay in opposing a motion for summary judgment. Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) and cases cited therein. Evidence of dealer complaints about the price-cutting practices of a competing dealer, followed by termination of the competitor, provides insufficient proof of antitrust conspiracy. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 763 — 64, 104 S.Ct. 1464, 1470-71, 79 L.Ed.2d 775 (1984). In the absence of other independent evidence establishing the existence of a conspiracy, appellant’s reliance on FED. R. EVID. 801(d)(2)(E) as the basis for admission of alleged coconspirator statements is misplaced. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, — U.S.-, 106 S. Ct. 77, 88 L.Ed.2d 63 (1985)." }, { "docid": "23050455", "title": "", "text": "Court concluded: The Court can find that GF had the power to veto applications by other distributors to obtain a distributorship in its territory, can find that the market study was a pretext designed to camouflage the decision which had already been made by GF and Dieter’s to refuse to deal with Lomar, can find that GF was a powerful force in the market, can find that GF did not have an “exclusive distributorship” with Dieter’s, and can find that GF raised its prices after Lomar was unable to buy Dieter’s products. Yet none of these facts give rise to the inference that there was a price-fixing conspiracy between GF and Dieter’s. Lomar I, 627 F.Supp. at 115. On appeal, Lomar argues that the District Court ignored evidence that GF was extremely concerned about Lomar’s price cutting. According to Lomar, evidence of this concern, in combination with the other evidence referred to by the District Court in the above-quoted language, establishes a triable case of vertical price fixing. We agree with the District Court that Lomar failed to produce evidence from which it reasonably could be inferred that “GF and Dieter’s took concerted action with the common purpose to fix prices.\" Id. As observed by the court below, Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984), specifically rejected the argument that a price fixing agreement can be “inferred merely from complaints by distributors to the manufacturer about price-cutting distributors and the fact that termination came about in response to such complaints.” Lomar I, 627 F.Supp. at 115. As this Court has observed, Monsanto means that “for a terminated dealer to prevail on its per se [price fixing] claim, the evidence must be sufficient for the jury to determine not merely that the manufacturer and nonterminated dealer conspired,” but that the conspiracy was price-related. McCabe’s Furniture, Inc. v. La-Z-Boy Chair Co., 798 F.2d 323, 329 (8th Cir.1986), petition for cert. filed, 55 U.S.L.W. 3495 (Dec. 29, 1986). Lomar has pointed to nothing in the record even remotely suggesting that Dieter’s shared" }, { "docid": "9929047", "title": "", "text": "however, recognized an exception to the general principle that a corporation cannot conspire with agents of this kind. When the interests of principal and agents diverge, and the agents at the time of the conspiracy are acting beyond the scope of their authority or for their own benefit rather than that of the principal, they may be legally capable of engaging in an antitrust conspiracy with their corporate principal. See Green v. Associated Milk Producers, Inc., 692 F.2d 1153, 1156-57 (8th Cir.1982); Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 531 F.2d 910, 916-17 (8th Cir.1976). Accord Victorian House, Inc. v. Fisher Camuto Corp., 769 F.2d 466, 469 (8th Cir. 1985). The district court analyzed the relationship between Hiebert and the representatives in light of the Morton Buildings and Green exception and found that the representatives never exceeded the scope of their authority and at all relevant times “were performing their normal duties within their authority for the benefit of Hie-bert.” Pink Supply Corp. v. Hiebert, Inc., 612 F.Supp. 1334, 1340 (D.Minn.1985). Our review of the record has revealed no evidence to the contrary. On appeal, Pink Supply contends that the district court erred in two respects. Appellant first urges that the evidence sufficiently raised an issue of fact regarding whether the representatives were acting for their own benefit in recommending appellant’s termination as a Hiebert dealer. Pink Supply had ignored Michael Ket-chum’s suggestion to Robert Wernick, appellant’s president, that a particular project, the First Bank of Ridgedale contract, was a “Dayton’s spec.” Dayton’s, a major Hiebert dealer in competition with Pink Supply, had invested several years of design and sales efforts in the bank project but lost the contract to Pink Supply’s lower bid. Appellant’s theory is that Ketchum sought Pink Supply’s termination in an effort to control dealer pricing and in order to protect his credibility in the marketplace. On the issue of dealer pricing, however, appellant offered no evidence suggesting a personal benefit to Ketchum or his companies from appellant’s adherence to particular resale price levels or any economic detriment to the representatives from appellant’s price-cutting." }, { "docid": "4641124", "title": "", "text": "p. 48.) Indeed, he complained he was literally “locked out” of negotiations with doctors relating to the possible purchase of HCP stock because he was not a member of HCP’s upper management. {Id., p. 19.) Lacking any foundation in his personal knowledge, Mr. Denman’s testimony is barred by Fed.R.Evid. 602 (“A witness may not testify unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.”). BCBSK next cites Dr. Alexander’s testimony regarding, first, alleged statements made by members of Family Physicians, P.A., concerning contacts with other Wichita physician groups about doing business with HMOK. On this point, Dr. Alexander’s testimony is inadmissible hearsay. Neither Family Physicians nor any individual members of that group are parties to this litigation. Dr. Alexander’s testimony concerning alleged statements made by other members of Family Physicians is flatly prohibited by Fed.R.Evid. 802. BCBSK’s attempted reliance on the “co-conspirator” proviso of Rule 801(d)(2)(E) is fruitless. “[A]cts and declarations of an alleged co-conspirator are admissible against another only if the existence of the conspiracy is in fact first established by independent evidence.” World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 77, 88 L.Ed.2d 63 (1985) (emphasis original). The required independent evidence must show more likely than not that “(1) the conspiracy existed; (2) the declar-ant and the defendant against whom the conspirator’s statement is offered were members of the conspiracy; and (3) the statement was made during the course of and in the furtherance of the objects of the conspiracy.” La-Z-Boy, 756 F.2d at 1474 (citing United States v. Petersen, 611 F.2d 1313, 1330 (10th Cir.1979), cert. denied 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980)). These criteria are not satisfied. BCBSK also relies on Dr. Alexander’s testimony regarding alleged statements made by Dr. Stan Kardatzke (an HCP representative) at a breakfast meeting of Family Physicians sometime in 1984 relative to dealing exclusively with HCP. This testimony, even if admissible, fails to raise a genuine issue of material fact as to the existence of conspiratorial" }, { "docid": "23050456", "title": "", "text": "Lomar failed to produce evidence from which it reasonably could be inferred that “GF and Dieter’s took concerted action with the common purpose to fix prices.\" Id. As observed by the court below, Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984), specifically rejected the argument that a price fixing agreement can be “inferred merely from complaints by distributors to the manufacturer about price-cutting distributors and the fact that termination came about in response to such complaints.” Lomar I, 627 F.Supp. at 115. As this Court has observed, Monsanto means that “for a terminated dealer to prevail on its per se [price fixing] claim, the evidence must be sufficient for the jury to determine not merely that the manufacturer and nonterminated dealer conspired,” but that the conspiracy was price-related. McCabe’s Furniture, Inc. v. La-Z-Boy Chair Co., 798 F.2d 323, 329 (8th Cir.1986), petition for cert. filed, 55 U.S.L.W. 3495 (Dec. 29, 1986). Lomar has pointed to nothing in the record even remotely suggesting that Dieter’s shared GF’s alleged price concerns. Instead, Lomar refers us to Victorian House, Inc. v. Fisher Camuto Corp., 769 F.2d 466 (8th Cir.1985), and attempts to revive the standard rejected in Monsanto. In Victorian House, we applied a per se rule to an apparel retailer’s claim that its termination as a distributor of the defendant’s line of shoes was the result of a price-related conspiracy between the defendant and the defendant’s distribution agent (who was also a competing retailer). There, the defendant had announced a new policy of refusing to deal with retailers who conveyed a “bargain basement” or “discount” image. Id. at 467-68. The distribution agent had recommended the plaintiff’s termination under this policy, and following its own inspection of the plaintiff’s store, the defendant complied. Id. at 468. The evidence also showed that the distribution agent previously had complained to the defendant about the plaintiff’s pricing and had threatened to terminate the plaintiff if it did not raise its prices. Id. at 469. Based on this evidence, we held that the jury reasonably could have" }, { "docid": "22569484", "title": "", "text": "or (2) whether this court concludes that United’s “practice facially appears to be one that would always or almost always tend to restrict competition and decrease output” in order to justify finding a new type of per se violation. Broadcast Music, Inc. v. CBS, 441 U.S. 1, 19-20, 99 S.Ct. 1551, 1562, 60 L.Ed.2d 1 (1979). 1. Vertical price-fixing. In order for a complaint to adequately state a vertical price-fixing violation (AKA “resale price maintenance”), plaintiff must allege at least some facts which would support an inference that the parties have agreed that one will set the price at which the other will resell the product or service to third parties. See Albrecht, 390 U.S. at 149, 88 S.Ct. at 871; Sitkin Smelting & Ref. Co. v. FMC Corp., 575 F.2d 440, 446 (3d Cir.), cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978) (violation is “agreement to fix the price to be charged in transactions with third parties, not between the contracting parties themselves”). The critical determination is whether the agreement deprives a trader of the ability to exercise its own judgment in “making independent pricing decisions.” World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1476 (10th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 77, 88 L.Ed.2d 63 (1985) (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 762, 104 S.Ct. 1464, 1470, 79 L.Ed.2d 775 (1984)). At best, Cayman alleged that United endeavored to coerce sellers (including Cayman) to accept lower than contract prices by systematically refusing to honor contractual “take-or-pay” clauses and by purchasing natural gas from Canadian suppliers. The district court noted that Cayman made no allegation that United was restricting resale prices to consumers, only that United attempted to fix the price stated in the gas purchase contract. We conclude that these allegations state a claim for breach of contract, but are insufficient to state a claim of vertical price-fixing. The district court correctly refused to transform a state breach of contract claim into a per se violation of federal antitrust laws. Not only is there no" }, { "docid": "23088040", "title": "", "text": "the district court’s determination that the proposed surveys did not constitute sufficient independent evidence to establish Mauldin’s participation in a price fixing conspiracy, and that the hearsay statements therefore were not admissible against him. We accordingly affirm the summary judgment in favor of Mauldin. B. Conspiracy Evidence With Respect To Montgomery Ward Montgomery Ward contends that the trial court erred in denying its motion for directed verdict because the record contains insufficient admissible evidence of its participation in the alleged price fixing conspiracy. While this appeal was pending, the Supreme Court specifically addressed the quantum of conspiracy evidence required to raise a jury issue when a plaintiff dealer alleges that he was terminated by a manufacturer pursuant to a vertical agreement to maintain resale prices. See Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Although the Court in Monsanto was concerned with conspiracy evidence sufficient to avoid a directed verdict for a defendant manufacturer, rather than a defendant dealer-competitor such as Montgomery Ward, the analysis in Monsanto governs our resolution of Montgomery Ward’s argument. The issue before us requires that we integrate the standards of Monsanto with the rule, discussed above in Part III A, that a co-conspirator’s hearsay statements are inadmissible against a defendant absent independent evidence of a conspiracy involving that defendant. In Monsanto the Court held that a jury may not be permitted to infer an agreement “merely from the existence of complaints, or even from the fact that termination came about ‘in response to’ complaints,” id. 104 S.Ct. at 1470, because this evidence, without more, does not indicate concerted action. The Court noted that although evidence of complaints does have some probative value, “the burden remains on the antitrust plaintiff to introduce additional evidence sufficient to support a finding of an unlawful contract, combination, or conspiracy,” id. 104 S.Ct. at 1471 n. 8, and “that tends to exclude the possibility that the manufacturer and nonterminated distributors were acting independently.” Id. 104 S.Ct. at 1471. “[Ejvidence must be presented both that the distributor communicated its acquiescence or agreement, and" }, { "docid": "23088042", "title": "", "text": "that this was sought by the manufacturer.” Id. 104 S.Ct. at n. 9. Here the district judge held extensive pretrial hearings to determine whether the taped telephone conversations were admissible against Montgomery Ward, and concluded that sufficient independent evidence existed of a conspiracy between La-Z-Boy and Montgomery Ward to admit the tapes under Fed.R.Evid. 801(d)(2)(E). With the benefit of Monsanto, we must disagree. If Montgomery Ward independently set its own prices, and if La-Z-Boy unilaterally decided to terminate World of Sleep for refusing to keep its prices up, no conspiracy existed between Montgomery Ward and La-Z-Boy. The only independent evidence of a conspiracy between them is precisely that which was held to be insufficient to raise a conspiracy fact issue in Monsanto — complaints by a dealer who competes with the price cutting plaintiff, and action in response by the manufacturer adverse to the price cutter. Under Monsanto this evidence does not tend to exclude the possibility that La-Z-Boy and Montgomery Ward were acting independently. World of Sleep presented no other evidence that La-Z-Boy sought and received Montgomery Ward’s agreement to maintain resale prices, or that Montgomery Ward sought and received La-Z-Boy’s agreement to coerce other dealers to keep their prices up. We conclude that the record contains insufficient independent evidence of Montgomery Ward’s participation in the alleged conspiracy to permit the admission of co-conspirator’s hearsay statements, see Fil-co, 709 F.2d at 1267, and that the independent evidence, standing alone, was not enough to allow this issue to go to the jury. For this reason, we affirm the judgment for Montgomery Ward on the Sherman Act claim. C. Conspiracy Evidence Against La-Z-Boy . We reach a different conclusion with respect to La-Z-Boy. A buyer who contends that a seller has taken action adverse to him as a means of enforcing price fixing may establish the requisite conspiracy by showing that although he refused to acquiesce in the price fixing, other buyers agreed to the arrangement. See Black Gold, Ltd. v. Rockwool Industries, Inc., 729 F.2d 676, 685-86 (10th Cir.), cert. denied, — U.S. -, 105 S.Ct. 178, 83 L.Ed.2d 113" }, { "docid": "21984783", "title": "", "text": "and without reference to the co-conspirator exception, the district court ruled that transcribed conversations and non-deposition statements of mill representatives were hearsay and would only be considered “for the non-hearsay purpose of showing the state of mind of mill decision makers” under Fed.R.Evid. 803(3). In United States v. Lopez-Gutierrez, 83 F.3d 1235 (10th Cir.1996), we explained the process by which a district court should determine the admissibility of alleged co-conspirator hearsay evidence: “[t]he court must determine by a preponderance of the evidence that: (1) a conspiracy existed; (2) the declarant and the defendant were members of the conspiracy; and (3) the hearsay statements were made in the course of and in furtherance of the conspiracy.” Id. at 1242. We further noted that, “[i]n making its preliminary factual determination as to whether a conspiracy exists, the court may consider the hearsay statement sought to be admitted, along with independent evidence tending to establish the conspiracy.” Id. Here, the district court failed to make a “preliminary factual determination” as to whether a conspiracy existed among the Established Distributors and the mills, as required by Lopez-Gutierrez. This legal error was an abuse of discretion. See generally Clark v. State Farm Mut. Auto. Ins. Co., 433 F.3d 703, 709 (10th Cir.2005). On remand, the district court should follow the procedure laid out in Lopez-Gutierrez in determining whether the mill representatives’ statements should be admitted under Rule 801(d)(2)(E). II. Federal Antitrust Claim The essence of a claim of violation of Section 1 of the Sherman Act is the agreement itself. See, e.g., Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 330, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991). “Only after an agreement is established will a court consider whether the agreement constituted an unreasonable restraint of trade.” AD/SAT, Div. of Skylight, Inc. v. Associated Press, 181 F.3d 216, 232 (2d Cir.1999); see also Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) (“Section 1 of the Sherman Act requires that there be a ‘contract, combination ... or conspiracy’ ... in order to establish a violation. Independent action" }, { "docid": "18789425", "title": "", "text": "no dispute that Apple received voluminous complaints from its dealers on many issues, including mail order dealers and price discounters. Virtually every dealer, including appellants, submitted complaints to Apple. Such communication alone cannot support a finding of an antitrust conspiracy. Monsanto, 465 U.S. at 762, 104 S.Ct. at 1470; Pumps & Power Co. v. Southern States Indus., Inc., 787 F.2d 1252, 1257 (8th Cir.1986). Further, both discounting and complaints continued after the mail order prohibition. There is no dispute Apple instituted a mail order ban and thereafter terminated violaters. Nonetheless, complaints followed by termination are not enough to provide sufficient proof of an antitrust conspiracy. Monsanto, 465 U.S. at 764, 104 S.Ct. at 1470; Pink Supply Co. v. Hiebert, Inc., 788 F.2d 1313, 1319 (8th Cir.1986); Filco, 709 F.2d at 1263. There was no evidence that price discounting was a formal topic of discussion at meetings attended by Apple representatives. In fact, the district court found that Apple forbade discussion of price and mail order issues at Dealer Council meetings. O.S. C., 601 F.Supp. at 1288. Apple’s president’s remark is entirely consistent with a manufacturer’s right to invoke vertical non-price restraints that “ensure that its distributors earn sufficient profit to pay for [desired] programs.” Monsanto, 465 U.S. at 762, 104 S.Ct. at 1470. We agree with the district court that the remaining allegations lack substantial support in the record. There was no evidence Apple coerced dealers on advertising or pricing decisions. The dealers admitted that Apple’s suggested retail prices were not binding. None of the appellants claim they were told to sell Apple products at any particular price. Dealers who were allegedly given new locations conditioned on advertising and pricing restrictions continued to advertise and to discount Apple products. Finally, the one dealer who claimed that Apple told him not to advertise prices nonetheless continued to do so. The district court found that Apple repeatedly informed that dealer orally and in writing that he could advertise prices. Id. at 1289. The dealers failed to come forward with specific factual support to overcome Apple’s asserted independent business justification. See Barnes, 759" }, { "docid": "9929051", "title": "", "text": "agents had played no prior role in the corporate organizations or distribution process. They were hired for the specific purpose of engaging in a course of anticompetitive conduct and did so, aware of that purpose, which they materially aided in accomplishing. The relationship between the Albrecht and International Travel agents and their principals therefore unquestionably represented the joining of previously divergent economic interests and “corporate consciousnesses” which Copperweld indicates is essential to provide “the plurality of actors imperative for a § 1 conspiracy.” Copperweld, supra, 104 S.Ct. at 2741, 2742. Thus the Albrecht and International Travel test for capacity to conspire may appropriately apply when two entirely separate economic units join together as principal and agent for the purpose of engaging in anticompetitive conduct. However, when the agent is already engaged in an ongoing relation with the principal built around the agent’s knowing and active participation in serving the principal’s interests, that fact alone cannot determine capacity of the two to conspire. Cf. Copper-weld, supra, 104 S.Ct. at 2734-35, 2742-45 (notwithstanding joint awareness of the anticompetitive purpose to be served and active participation by both parent corporation and wholly owned subsidiary in accomplishing that purpose, the two are not legally capable of combination or conspiracy within the meaning of section 1). We conclude, therefore, that the district court was correct in applying the Morton Buildings and Green test, rather than the Albrecht and International Travel test, concerning the agents’ capacity to conspire with Hiebert. Moreover, we agree with the district court that the representatives did not exceed the scope of their authority or act for their own economic benefit in recommending appellant’s termination. We find no evidence in the record which would support a conclusion to the contrary. II. As an alternative theory, Pink Supply alleges a conspiracy between Dayton’s and Hiebert or between Dayton’s and the combined entity of Hiebert and the representatives. The district court found insufficient admissible evidence that these actors combined to procure appellant’s termination so as to fix prices in Hiebert furniture. Pink Supply, supra, 612 F.Supp. at 1342-47. Appellant objects to the district court’s" }, { "docid": "1292420", "title": "", "text": "automobiles to [JPMI]” and that GM knowingly became a member of the conspiracy. 'GM asserts the district court' should have granted its motion for JAML because Lovett did not show GM joined any dealer conspiracy. To establish a violation of 15 U.S.C. § 1, Lovett had to show there was a conspiracy between GM and its dealers. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984)., Because there is no direct evidence of conspiracy in this case, we must decide whether • a reasonable juror could infer the existence of a conspiracy from the circumstantial evidence. Although we view the evidence and all reasonable inferences in the light most, favorable to Lovett when reviewing the district court’s denial of JAML, McCabe’s Furniture, Inc. v. Lar-Z-Boy Chair Co., 798 F.2d 323, 327 (8th Cir. 1986), the range of permissible inferences from ambiguous evidence is limited in a section one case, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Section one does not prohibit a manufacturer from taking independent action against a dealer. Monsanto, 465 U.S. at 761, 104 S.Ct. at 1469. This is so because a manufacturer may have its own valid business reasons for taking the adverse action. A manufacturer often wants to ensure its dealers earn enough profit to pay for services and promotional activities that are necessary to market the manufacturer’s product efficiently. Id. at 762-63, 104 S.Ct. at 1470; Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 55, 97 S.Ct. 2549, 2560, 53 L.Ed.2d 568 (1977). Manufacturers also have an interest in preventing “free riding.” Monsanto, 465 U.S. at 762-63, 104 S.Ct. at 1470; see Sylvania, 433 U.S. at 55, 97 S.Ct. at 2560. A free rider problem may arise when a manufacturer’s dealers offer presale, point-of-sale, or postsale services. Davis-Watkins Co. v. Service Merchandise, 686 F.2d 1190, 1195 n. 8 (6th Cir.1982). Price-cutting dealers are often able to sell at lower prices by avoiding the cost of providing these services. Id. Consumers can" }, { "docid": "9929049", "title": "", "text": "Pink Supply and the representatives were not competitors. Moreover, as the district court noted, appellant’s own employees testified that the ap-pellees did not discuss or otherwise attempt to direct Pink Supply’s pricing of Hiebert products. Id. at 1341. As for the credibility motive, no evidence was offered to connect the status of Ket-chum’s credibility to any particular financial gain or loss in the marketplace. It was not the representatives’ function to select the dealer who filled a particular furniture order. Moreover, since the representatives received a commission directly from Hie-bert based on total sales in the trade area to which the representatives were assigned, it was economically irrelevant to them which dealer actually placed a sale. Our decisions have required more than mere speculation regarding the benefit to an agent to be realized from participation in a conspiracy with the principal. Unlike the sales agent in Victorian House, supra, Hiebert’s sales representatives derived no financial benefit from the elimination of Pink Supply from the Hiebert organization. We construe “for the agent’s own benefit” to mean at least an economic stake in the gain to be realized from the anticompetitive object of the conspiracy. See Hotter v. Moore and Co., 702 F.2d 854, 857 n. 8 (10th Cir.), cert. denied, 464 U.S. 987,104 S.Ct. 347, 78 L.Ed.2d 313 (1983); H & B Equipment Co. v. International Harvester Co., 577 F.2d 239, 244 (5th Cir.1978). Appellant next asserts that Albrecht v. Herald Co., 390 U.S. 145, 150, 88 S.Ct. 869, 871-72, 19 L.Ed.2d 998 (1968) and International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255,1266 (8th Cir.), cert. denied, 449 U.S. 1063, 101 S.Ct. 787, 66 L.Ed.2d 605 (1980), authorize a finding of conspiracy between a corporation and its agents if the agents are aware of the anticompetitive purpose for which they are being used. Appellant contends that the sales representatives were fully aware of the price-related purpose to be served by Pink Supply’s termination. The agents in Albrecht (a customer solicitation firm) and International Travel (an advertising agency) were separate economic units completely distinct from their corporate principals. The" }, { "docid": "9929041", "title": "", "text": "ROSS, Circuit Judge. After its termination as a dealer in office furniture manufactured by Hiebert, Inc., appellant, Pink Supply Corporation, brought this antitrust action against appel-lees, Hiebert and four sales representatives, alleging a price-fixing and boycott conspiracy in violation of section 1 of the Sherman Act, 15 U.S.C. § 1 (1982). In addition, the complaint alleged a similar conspiracy between Hiebert and another dealer, Dayton’s Commercial Interiors, not a party to this action. Upon completion of discovery, the district court granted the appellees’ motion for summary judgment, finding an absence of concerted action within the meaning of the Sherman Act. Specifically, the district court concluded that the sales representatives, as agents in the nature of employees, could not as a matter of law conspire with Hiebert, their principal, and that Pink Supply had offered insufficient admissible evidence of a conspiracy between Hiebert and its dealer, Dayton’s, on which to proceed to trial. We affirm. I. The sales representatives named by appellant as coconspirators with Hiebert were Interior Design Products, Inc.; Northern Design Products, Inc., a successor corporation to Interior Design; Michael Ketchum, founder and president of the design corporations, and John Brion, an employee in Ketchum’s companies and formerly an employee of Pink Supply. At all relevant times, the representatives served as commissioned sales agents for Hiebert. Appellant alleged that the representatives conspired with Hiebert to eliminate Pink Supply’s dealership in an effort to fix resale prices in Hiebert furniture. The Supreme Court has recently reiterated that section 1 of the Sherman Act prohibits only those unreasonable re straints of trade which are “effected by a ‘contract, combination * * *, or conspiracy’ between separate entities.” Fisher v. City of Berkeley, — U.S.-, 106 S.Ct. 1045, 1049, 89 L.Ed.2d 206 (1986), quoting Cop-perweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984) (emphasis in original). The economic substance of the relationship between two entities determines whether they are “separate” for purposes of a section 1 conspiracy. A corporation cannot, for example, conspire with its own officers and employees. Copperweld, supra, 104 S.Ct. at" } ]

[ { "docid": "22646024", "title": "", "text": "and excluded that part of “Alcoa’s own production which it fabricated and did not therefore sell as ingot. If, on the other hand, “Alcoa’s” total production, fabricated ’ and sold, be included, and balanced against the sum of imported “virgin” and “secondary,” its share of the market was in the neighborhood of sixty-four per cent for that period. The percentage we have already mentioned — over ninety — results only if we both include all “Alcoa’s” production and exclude “secondary”. That percentage is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three per cent is not. Hence it is necessary to settle what;he)shall treat as competing in the ingot market. That part of its production which “Alcoa” itself fabricates, does not of course ever reach the market as ingot; and we recognize that it is only when a restriction of production either inevitably affects prices, or is intended to do so, that it violates § 1 of the Act. Apex Hosiery Co. v. Leader, 310 U.S. 469, 501, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044. However, even though we were to assume that a monopoly is unlawful under § 2 only in case it controls prices, the ingot fabricated by “Alcoa,” 'necessarily had a direct effect upon the ingot market. All ingot- — with trifling exceptions— is used to fabricate intermediate, or end, products; and therefore all intermediate, or end, products which “Alcoa” fabricates and sells, pro tanto reduce the demand for •ingot itself. The situation is the same, though reversed, as in Standard Oil Co. v. United States, 221 U.S. 1, 77, 31 S.Ct. 502, 523, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas.1912D, 734, where the court answered the defendants’ argument that they had no control over the crude oil by saying that “as substantial power over the crude product was the inevitable result of the absolute control which existed over the refined product, the monopolization of the one carried with it the power to control the other.” We cannot therefore agree that the computation of the" } ]

[ { "docid": "148022", "title": "", "text": "versions of a heart medication with the chemical compound diltiazem hydrochloride constitute a single market), aff'd, 332 F.3d 896 (6th Cir.2003). Although it may be beyond this Court’s competence to confirm the accuracy of the Direct Purchasers’ characterization of the reasonable interchangeability of brand Nexium with other drugs, such a factually intensive determination is better left for resolution by a jury, see Eastman Kodak, 504 U.S. at 482, 112 S.Ct. 2072 (observing that “[t]he proper market definition ... can be determined only after a factual inquiry into the ‘commercial realities’ faced by consumers,” id. (quoting United States v. Grinnell Corp., 384 U.S. 563, 572, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966))); Todd v. Exxon Corp., 275 F.3d 191, 199-200 (2d Cir.2001) (explaining that “[b]ecause market definition is a deeply fact-intensive inquiry, courts hesitate to grant motions to dismiss for failure to plead a relevant product market”), so, by definition, the Defendants’ motions to dismiss cannot be sustained on this ground. Taking the relevant market to be comprised of brand and generic Nexium alone for the purposes of this memorandum, this Court reaches the conclusion that the Direct Purchasers’ complaint alleges more than enough facts to enable a reasonable jury to find that the Defendants exercise market power. Market power can be proven in one of two ways: either by (1) “direct evidence of market power (perhaps by showing actual supra-competitive prices and restricted output)” or by (2) “circumstantial evidence of market power ... [which] show[s] that the defendant has a dominant share in a well-defined relevant market and that there are significant barriers to entry in that market and that existing competitors lack the capacity to increase their output in the short run.” Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 196-97 (1st Cir.1996) (citation omitted). This Court need not engage in an extensive analysis of circumstantial evidence of market power because direct evidence of such power is available — the Direct Purchasers have thoroughly alleged that AstraZeneca, in its position as a monopolist, has been able to charge supracompetitive prices for brand Nexium. See Direct" }, { "docid": "11153736", "title": "", "text": "includes all ABA and NBA teams during the mid 1970s. “Monopoly Power is the power to control prices or exclude competition.” E.I. du Pont, 351 U.S. at 391, 76 S.Ct. at 1005. See also Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 14, 104 S.Ct. 1551, 1559, 80 L.Ed.2d 2 (1984) (market power is the “power to force a purchaser to do something he would not do in a competitive market”); Apex Oil Co. v. DiMauro, 713 F.Supp. 587, 600 (S.D.N.Y.1989) (monopoly power defined as “the impairment of competition through an unlawfully acquired market structure which allows the monopolist to exclude competition or to raise prices without being undercut”). The existence of monopoly power “ordinarily is inferred from the seller’s possession of a predominant share of the market.” Eastman Kodak Co., — U.S. at -, 112 S.Ct. at 2081; Jefferson Parish, 466 U.S. at 17, 104 S.Ct. at 1561; Grinnell Corp., 384 U.S. at 571, 86 S.Ct. at 1704. Judge Learned Hand’s rule of thumb in the ALCOA case has guided courts for nearly half a century: 90 percent “is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three percent is not.” United States v. Aluminum Co. of America, 148 F.2d 416, 424 (1945). Courts routinely find monopoly power where the defendant possesses a market share greater than 70 percent. See Grinnell, 384 U.S. at 571, 86 S.Ct. at 1704 (87 percent of the market constituted monopoly power); Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 974 & n. 6 (8th Cir.1968) (surveying cases and noting that percentages greater than 70 percent generally are found to constitute monopoly power), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969). The Second Circuit has stated that summary judgment is appropriate in § 2 cases where the defendant’s market share is “less than 50%, or even somewhat above that figure, and the record contains no significant evidence concerning the market structure to show that the defendant’s share of that market gives it monopoly power.” Broadway Delivery" }, { "docid": "7421448", "title": "", "text": "instructed that product and market definitions were to be ascertained by reference to evidence of consumers’ perception of the nature of the products and the markets for them, rather than to abstract or metaphysical assumptions as to the configuration of the “product” and the “market.” Jefferson Parish, 466 U.S. at 18, 104 S.Ct. 1551; Eastman Kodak, 504 U.S. at 481-82, 112 S.Ct. 2072. In the instant case, the commercial reality is that consumers today perceive operating systems and browsers as separate “products,” for which there is separate demand. Findings ¶¶ 149-54. This is true notwithstanding the fact that the software code supplying their discrete functionalities can be commingled in virtually infinite combinations, rendering each indistinguishable from the whole in terms of files of code or any other taxonomy. Id. ¶¶ 149-50, 162-63, 187-91. Proceeding in line with the Supreme Court cases,, which are indisputably controlling, this Court first concludes that Microsoft possessed “appreciable economic power in the tying market,” Eastman Kodak, 504 U.S. at 464, 112 S.Ct. 2072, which in this case is the market for Intel-compatible PC operating systems. See Jefferson Parish, 466 U.S. at 14, 104 S.Ct. 1551 (defining market power as ability to force purchaser to do something that he would not do in competitive market); see also Fortner Enterprises, Inc. v. United States Steel Gorp., 394 U.S. 495, 504, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969) (ability to raise prices or to impose tie-ins on any appreciable number of buyers within the tying product market is sufficient). While courts typically have not specified a percentage of the market that creates the presumption of “market power,” no court has ever found that the requisite degree of power exceeds the amount necessary for a finding of monopoly power. See Eastman Kodak, 504 U.S. at 481, 112 S.Ct. 2072. Because this Court has already found that Microsoft possesses monopoly power in the worldwide market for Intel-compatible PC operating systems (ie., the tying product market), Findings ¶¶ 18-67, the threshold element of “appreciable economic power” is a fortiori met. Similarly, the Court’s Findings strongly support a conclusion that a “not" }, { "docid": "8812340", "title": "", "text": "products will affect all prospective members of a class in a common manner.”). The Supreme Court has held that “the answer to the question of whether one or two products are involved turns not on the functional relation between them, but rather on the character of the demand for the two items.” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 19, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). The operative question is whether “two separate product markets have been linked.” Id. at 21, 104 S.Ct. 1551. This is a question easily decided on an aggregate basis. b. Whether the Defendants Possess Market Power in the Tying Product The defendants also contend that the existence of their market power will depend on the size of the putative class member, thus making class-wide resolution of this element unwarranted. I reject this contention. Market power is “the ability of a single seller to raise price and restrict output.” Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 464, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quoting Fortner Enters., Inc. v. United States Steel Corp., 394 U.S. 495, 503, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969)). “The existence of such power ordinarily is inferred from the seller’s possession of a predominant share of the market.” Id. Because this inquiry focuses on the position of the seller, not that of individual buyers, -it “is readily susceptible to proof in a class action.” Hill v. A-T-O, Inc., 80 F.R.D. 68, 69 (E.D.N.Y.1978). One commentator has cautioned that class treatment of market power is appropriate only when plaintiffs rely on “objective evidence of either the defendant’s market dominance or the product’s uniqueness,” as opposed to “the attitude of the purchaser or ... the conduct of particular business relationships.” Matheson, supra, at 881-82. According to the Carlton Declaration, the plaintiffs here will rely on objective evidence of market share and price discrimination (by category, not by individual merchant) to prove market power. (Carlton Declaration KH 15-23.) Class-wide determination of defendants’ market power is warranted. Id. at 31 (quoting 2 Areeda & Turner, Antitrust" }, { "docid": "7211966", "title": "", "text": "to prevent conduct which “unfairly tends to destroy competition itself’ and to protect the public from the failure of the market. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). “To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompet-itive conduct.” Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004). A claim of monopoly power may be alleged by pleading 1) power to control prices or exclude competition, or 2) possession of a predominant share of the relevant market. Grinnell Corp., 384 U.S. at 571, 86 S.Ct. 1698; Bonded Concrete, Inc. v. D.A Collins Constr. Co., 29 Fed.Appx. 725, 726 (2d Cir.2002); Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90 (2d Cir.1998). Monopoly power is more commonly established by showing that the defendant holds a large percentage share of the relevant market. In order to make this type of showing, a plaintiff proceeds by defining the relevant market in geographic terms and alleging the defendants’ share of that market relative to other participants. See United States v. Eastman Kodak Co., 63 F.3d 95, 104 (2d Cir.1995); see also Todd v. Exxon Corp., 275 F.3d 191, 199 (2d Cir.2001); AD/SAT, Div. of Skylight, Inc. v. Associated Press, 181 F.3d 216, 226 (2d Cir. 1999). Determining a relevant geographic and product market is a “deeply fact-intensive inquiry,” and for that reason courts often hesitate to grant motions to dismiss for failure to plead a relevant product market. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Todd, 275 F.3d at 199-200. 2. Merced’s Monopolization Claim Merced’s Section 2 claims of monopolization and, in the alternative, at tempted monopolization, are premised on Barclays’s intent and ability to dictate the Daily Index prices on both the ICE and Dow Jones exchanges. By intentionally engaging in large quantities of money-losing purchases and sales in the daily markets to" }, { "docid": "576483", "title": "", "text": "a single seller to raise price and restrict output.” Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 464, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quoting Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 14, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984); Fortner Enters., Inc. v. United States Steel Corp., 394 U.S. 495, 503, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969)). It is ordinarily “inferred from the seller’s possession of a predominant share , of the market.” Id. Assuming for the moment that the Atlantic County is the relevant geographic market, there were three hospitals and thirty-five general surgeons practicing there. Plaintiff has not even started to establish his claim that any of those hospitals or any combination of physicians had market power in that area. Moreover, Plaintiff has not provided evidence of rising prices or restricted output from which the Court might infer market power. Because medical fees are largely dictated by health insurance companies, Medicaid, and Medicare, courts have looked also at other indicia of anticompeti-tiveness, such as the quality of care, which is often determinative for consumers of medical services. See Robinson v. Magovern, 521 F.Supp. 842, 877 (W.D.Pa.1981). Other than alleging that his business declined as a result of the loss of his privileges at ACMC, not a surprising consequence, Plaintiff has provided no evidence of rising prices or a decline in quality of care. In fact, when asked what he thought of some of the other surgeons at ACMC, Plaintiff would not comment. Finally, as the Third Circuit stated in Mathews, “peer review actions, when properly conduced, generally enhance competition and improve the quality of medical care.” Id. at 640. “We are reluctant to draw inferences of an antitrust conspiracy from ambiguous circumstantial evidence in cases where the challenged activity promotes competition. Evidence of conduct, which is ‘as consistent with permissible competition as with illegal conspiracy does not, without more, support even an inference of conspiracy.’ ” Id. at 640 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538" }, { "docid": "800570", "title": "", "text": "767, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984)). “Section 1 applies only to concerted action that restrains trade. Section 2, by contrast, covers both concerted and independent action, but only if that action ‘monopolize^],’ 15 U.S.C. § 2, or ‘threatens actual monopolization.’ ” Id. (quoting Copperweld, 467 U.S. at 767, 104 S.Ct. 2731) (characterizing this as the “basic distinction” between the two sections) (alteration in original). To state a claim for attempted monopolization under §' 2 of the Sherman Act, Bosch must plausibly allege: “(1) [Nucap’s] specific intent to achieve monopoly power in a relevant market; (2) predatory or anticompetitive conduct directed to accomplishing this purpose; and (3) a dangerous probability that the attempt at monopolization will succeed.” Viamedia, Inc. v. Comcast Corp., 218 F.Supp.3d 674, 686-87 (N.D. Ill. 2016) (quoting Mercatus Grp., LLC v. Lake Forest Hosp., 641 F.3d 834, 854 (7th Cir. 2011)) (other citation, omitted); accord Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993); E-One, 2006 WL 3320441, at *2 (citing Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 270 (7th Cir. 1981)). As those elements presuppqse the existence of a relevant market for analysis, the court begins by asking whether Bosch has adequately delineated the relevant markets in its antitrust counterclaims. C. Market Definitions “Although market definition is a deeply fact-intensive inquiry, failure to offer a plausible relevant market is a proper ground for dismissing an antitrust claim” at the Rule 12(b)(6) stage. Right Field Rooftops, LLC v. Chi. Baseball Holdings, LLC, 87 F.Supp.3d 874, 886 (N.D. Ill. 2015) (citing Nat’l Hockey League Players’ Ass’n v. Plymouth Whalers Hockey Club, 325 F.3d 712, 719-20 (6th Cir. 2003)) (internal quotation and other citations omitted) (applying rule on motion for preliminary injunction but analyzing complaint’s sufficiency); see also Ploss v. Kraft Foods Grp., Inc., 197 F.Supp.3d 1037,1070-71 (N.D. Ill. 2016) (analyzing whether complaint plausibly identified the relevant market on Rule 12(b)(6) motion). Without a relevant market defined, the court cannot assess the defendant’s market power or determine whether the defendant’s attempted conduct pleaded in the complaint .had a dangerous probability" }, { "docid": "4775662", "title": "", "text": "per cent market share, and that the share was increasing, could not under any market conditions provide a basis for inferring the requisite market power. Id. at 925 (emphasis added). In sum, while CMS’s complaint perhaps could have provided more detailed allegations on this issue, we are not prepared to hold, based on CMS’s allegations that (1) WNG has a 90 percent market share in the relevant market, (2) WNG has been able to charge off-tariff prices, and (3) WNG’s alleged off-tariff pricing has excluded competition from the market, that CMS can prove no set of facts establishing that WNG has monopoly power. CMS’s allegations are sufficient to withstand a motion to dismiss. Cf. Rebel Oil, 51 F.3d at 1438 (“ARCO’s market share of 44 percent is sufficient as a matter of law to support a finding of market power, if entry barriers are high and competitors are unable to expand their output in response to supra-competitive pricing.”). B Second, WNG argues that CMS’s “monopoly leveraging” theoiy was rejected by this court in Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 549 (9th Cir.1991), cert. denied, 503 U.S. 977, 112 S.Ct. 1603, 118 L.Ed.2d 316 (1992), and that CMS therefore cannot proceed on its theory that WNG has used its monopoly over gas delivery services in an attempt to monopolize the market for gas sales. The dispute between the parties on this issue turns primarily on the definition of “monopoly leveraging.” In Alaska Airlines, we did in fact reject the Second Circuit’s holding in Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980) that “a single firm may be liable for monopoly leveraging, even in the absence of a threat that the ‘leveraged’ market will be monopolized.....” Alaska Airlines, 948 F.2d at 546 (internal quotation marks and citations omitted) (emphasis added). We noted that [i]n contrast to the traditional actions for monopoly and attempted monopoly, Berkey Photo’s “monopoly leveraging” doctrine has only two rather loose elements: 1) there must be monopoly power in" }, { "docid": "12459339", "title": "", "text": "dismiss. Spanish Broad. Sys., 876 F.3d at 1077-78. A nonconclusory allegation that a defendant holds a predominant share of the relevant market will usually satisfy the monopoly power element of a monopolization claim. Grinnell, 384 U.S. at 571, 86 S.Ct. 1698; U.S. Anchor Mfg. Inc. v. Rule Indus., Inc., 7 F.3d 986, 999 (11th Cir. 1993) (principal measure of monopoly power is market share). The precise market share a defendant must control before it has monopoly power remains undefined, but, the case law supports the conclusion that a market share of more than 70 percent is generally sufficient to support an inference of monopoly power. See, e.g., Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 481, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (factfinder can infer monopoly power from an 80 percent market share); Morgenstern v. Wilson, 29 F.3d 1291, 1296 n. 3 (8th Cir.1994) (share of more than 80 percent sufficient); Heatransfer Corp. v. Volkswagenwerk, A.G., 553 F.2d 964, 981 (5th Cir.1977) (71-76 percent share sufficient); Int’l Audiotext Network v. Am. Tel. & Tel. Co., 893 F.Supp. 1207, 1217-18 (S.D.N.Y.1994) (70 percent market share generally adequate at the pleading stage); see also ABA Section of Antitrust Law, Antitrust Law Developments 230-31 (7th ed. 2012) (collecting cases). In contrast, courts almost never find monopoly power when market share is less than about 50 percent. American Telephone & Telegraph Co. v. Delta Commc’ns Corp., 408 F.Supp. 1075, 1107 (S.D.Miss. 1976), aff’d per curiam, 579 F.2d 972 (5th Cir.1978) (adopting district court opinion), modified on other grounds, 590 F.2d 100 (5th Cir.1979) (41% share of local prime time television market insufficient to subject television network to Section 2 monopolization scrutiny); Bailey v. Allgas, Inc., 284 F.3d 1237, 1250 (11th Cir.2002) (\"market share at or less than 50% is inadequate as a matter of law to constitute monopoly power\"); Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic, 65 F.3d 1406, 1411 (7th Cir.1995) (\"Fifty percent is below any accepted benchmark for inferring monopoly power from market share\"). The Fifth Circuit adheres to Judge Learned Hand’s widely accepted" }, { "docid": "11153737", "title": "", "text": "for nearly half a century: 90 percent “is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three percent is not.” United States v. Aluminum Co. of America, 148 F.2d 416, 424 (1945). Courts routinely find monopoly power where the defendant possesses a market share greater than 70 percent. See Grinnell, 384 U.S. at 571, 86 S.Ct. at 1704 (87 percent of the market constituted monopoly power); Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 974 & n. 6 (8th Cir.1968) (surveying cases and noting that percentages greater than 70 percent generally are found to constitute monopoly power), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969). The Second Circuit has stated that summary judgment is appropriate in § 2 cases where the defendant’s market share is “less than 50%, or even somewhat above that figure, and the record contains no significant evidence concerning the market structure to show that the defendant’s share of that market gives it monopoly power.” Broadway Delivery Corp. v. United Parcel Serv. of America, Inc., 651 F.2d 122, 129 (2d Cir.) (emphasis in original), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981). This is such a case: Plaintiff contends that the ABA member teams held 36% of the relevant market’s capacity for professional basketball, player services at the time Caldwell was suspended. This number is arrived at by creating a fraction in which the number of ABA teams (10) is the numerator, and the total number of teams in the NBA and the ABA (28) is the denominator. We believe that plaintiffs approach to define market share can be described, charitably, as simplistic. • The Supreme Court has recently reiterated that in determining the existence of market power, the court must “examine! ] closely the economic reality of the market at issue.” Eastman Kodak Co., — U.S. at -, 112 S.Ct. at 2082. Plaintiffs conclusion regarding the ABA’s market share does not take into account disparities between the leagues in ticket sales, broadcast revenues, licensing fees, and other" }, { "docid": "7421449", "title": "", "text": "for Intel-compatible PC operating systems. See Jefferson Parish, 466 U.S. at 14, 104 S.Ct. 1551 (defining market power as ability to force purchaser to do something that he would not do in competitive market); see also Fortner Enterprises, Inc. v. United States Steel Gorp., 394 U.S. 495, 504, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969) (ability to raise prices or to impose tie-ins on any appreciable number of buyers within the tying product market is sufficient). While courts typically have not specified a percentage of the market that creates the presumption of “market power,” no court has ever found that the requisite degree of power exceeds the amount necessary for a finding of monopoly power. See Eastman Kodak, 504 U.S. at 481, 112 S.Ct. 2072. Because this Court has already found that Microsoft possesses monopoly power in the worldwide market for Intel-compatible PC operating systems (ie., the tying product market), Findings ¶¶ 18-67, the threshold element of “appreciable economic power” is a fortiori met. Similarly, the Court’s Findings strongly support a conclusion that a “not insubstantial” amount of commerce was foreclosed to competitors as a result of Microsoft’s decision to bundle Internet Explorer with Windows. The controlling consideration under this element is “simply whether a total amount of business” that is “substantial enough in terms of dollar-volume so as not to be merely de minimis ” is foreclosed. Fortner, 394 U.S. at 501, 89 S.Ct. 1252; cf. International Salt Co. v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 92 L.Ed. 20 (1947) (unreasonable per se to foreclose competitors from any substantial market by a tying arrangement). Although the Court’s Findings do not specify a dollar amount of business that has been foreclosed to any particular present or potential competitor of Microsoft in the relevant market, including Netscape, the Court did find that Microsoft’s bundling practices caused Navigator’s usage share to drop substantially from 1995 to 1998, and that as a direct result Netscape suffered a severe drop in revenues from lost advertisers, Web traffic and purchases of server products. It is thus obvious that the foreclosure achieved by" }, { "docid": "576482", "title": "", "text": "an entity had no interest in competition with the hospital. Id. at 817. Therefore, Plaintiff can not establish that there was a conspiracy as between the Defendant members of the medical staff and the hospital. 2. Restraint of Trade Injurious to Competition To satisfy the second prong, Plaintiff must demonstrate that Defendants’ actions “produced anticompetitive effects on interstate commerce within the relevant product and geographic markets.” Mathews, 87 F.3d at 689. a. Anticompetitive Effects It is well-settled that the gravamen of an antitrust action is the alleged restraint’s effect on competition, not competitors. See Tunis Bros. Co. v. Ford Motor Co., 952 F.2d 715, 727 (3d Cir.1991) (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)). For a restraint of trade to be anti-competitive, defendants must possess market power in the relevant markets. See Farr, 1993 WL 220680, at *6. “Market power is the power to force a purchaser to do something that he would not do in a competitive market ... [i.e] the ability of a single seller to raise price and restrict output.” Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 464, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quoting Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 14, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984); Fortner Enters., Inc. v. United States Steel Corp., 394 U.S. 495, 503, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969)). It is ordinarily “inferred from the seller’s possession of a predominant share , of the market.” Id. Assuming for the moment that the Atlantic County is the relevant geographic market, there were three hospitals and thirty-five general surgeons practicing there. Plaintiff has not even started to establish his claim that any of those hospitals or any combination of physicians had market power in that area. Moreover, Plaintiff has not provided evidence of rising prices or restricted output from which the Court might infer market power. Because medical fees are largely dictated by health insurance companies, Medicaid, and Medicare, courts have looked also at other indicia of anticompeti-tiveness, such" }, { "docid": "12459338", "title": "", "text": "S.Ct. 1698; see also Republic Tobacco v. N. Atl. Trading, 381 F.3d 717 (7th Cir.2004) (finding national market for roll-your-own cigarette paper supply because suppliers sold to national wholesalers and published national price lists); Nat’l Athletic Trainers’ Ass’n, Inc. v. Am. Physical Therapy Ass’n, CIV A 3:08-CV-0158-G, 2008 WL 4146022 at *12 (N.D.Tex. Sept. 9, 2008) (the nationwide relevant geographic market for physical therapy was sufficiently alleged because “the alleged anticompetitive conduct takes place on a national scale, and, to the extent it can be proven, stands to affect [athletic trainers] across the country”). Defendants have not shown that plaintiffs’ alle gations of a national geographic market are insufficient to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). 2. Monopoly Power Although DPPs’ complaint contains allegations of a relevant market, plaintiffs’ claim of monopolization under Section 2 of the Sherman Act fails because plaintiffs have not plausibly alleged that Pool possesses monopoly power in the relevant market. Plaintiffs must plead facts sufficient to support this element to survive a motion to dismiss. Spanish Broad. Sys., 876 F.3d at 1077-78. A nonconclusory allegation that a defendant holds a predominant share of the relevant market will usually satisfy the monopoly power element of a monopolization claim. Grinnell, 384 U.S. at 571, 86 S.Ct. 1698; U.S. Anchor Mfg. Inc. v. Rule Indus., Inc., 7 F.3d 986, 999 (11th Cir. 1993) (principal measure of monopoly power is market share). The precise market share a defendant must control before it has monopoly power remains undefined, but, the case law supports the conclusion that a market share of more than 70 percent is generally sufficient to support an inference of monopoly power. See, e.g., Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 481, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (factfinder can infer monopoly power from an 80 percent market share); Morgenstern v. Wilson, 29 F.3d 1291, 1296 n. 3 (8th Cir.1994) (share of more than 80 percent sufficient); Heatransfer Corp. v. Volkswagenwerk, A.G., 553 F.2d 964, 981 (5th Cir.1977) (71-76 percent share sufficient); Int’l Audiotext Network v. Am." }, { "docid": "11153735", "title": "", "text": "(quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966)); accord Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 596 n. 19, 105 S.Ct. 2847, 2854 n. 19, 86 L.Ed.2d 467 (1985). The Court must first determine the relevant market and then decide whether the defendants had “monopoly power” in that market. Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir.1992). Defining the relevant product and geographic markets in an antitrust case is often a difficult task. See generally United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947). In its opposition papers, the plaintiff has defined the relevant market as “the market for professional player services.” PL’s Mem. at 68. The defendants have accepted, for the purposes of this motion, that the plaintiffs market definition is correct. The parties assume that this market includes all ABA and NBA teams during the mid 1970s. “Monopoly Power is the power to control prices or exclude competition.” E.I. du Pont, 351 U.S. at 391, 76 S.Ct. at 1005. See also Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 14, 104 S.Ct. 1551, 1559, 80 L.Ed.2d 2 (1984) (market power is the “power to force a purchaser to do something he would not do in a competitive market”); Apex Oil Co. v. DiMauro, 713 F.Supp. 587, 600 (S.D.N.Y.1989) (monopoly power defined as “the impairment of competition through an unlawfully acquired market structure which allows the monopolist to exclude competition or to raise prices without being undercut”). The existence of monopoly power “ordinarily is inferred from the seller’s possession of a predominant share of the market.” Eastman Kodak Co., — U.S. at -, 112 S.Ct. at 2081; Jefferson Parish, 466 U.S. at 17, 104 S.Ct. at 1561; Grinnell Corp., 384 U.S. at 571, 86 S.Ct. at 1704. Judge Learned Hand’s rule of thumb in the ALCOA case has guided courts" }, { "docid": "11574235", "title": "", "text": "Constitution. Following minimal discovery, URI and LINA moved to dismiss pursuant to Fed.R.CivJP. 12(b)(6), and the district court dismissed all claims. Lee v. Life Ins. Co. of N.A., 829 F.Supp. 529 (D.R.I.1998). II DISCUSSION A. The Antitrust “Tying” Claim Appellants challenge the dismissal of their claim that the URI health eare- insurance scheme is an impermissible “tying” arrangement in violation of the Sherman Act, 15 U.S.C. § 1 (1993) (“Every contract ... in restraint of trade or commerce ... is hereby declared to be illegal”). See Eastman Kodak Co. v. Image Technical Servs., Inc., —U.S.-, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (‘‘Kodak ”). “A tying arrangement is ‘an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.’” Id. at -, 112 S.Ct. at 2079 (quoting Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 519, 2 L.Ed.2d 545 (1958)). Generally speaking, an impermissible “tie-in” occurs if a seller (viz., URI) enjoys either a monopoly or “appreciable economic power” (“AEP”) in the “tying” product (or service) market, and uses its considerable market leverage to “coerce” a buyer — already intent on purchasing the tying product from the seller — into buying a second, “tied” product that the buyer would not have bought based solely on the quality or price of the tied product itself. See Fortner Enters., Inc. v. United States Steel Corp., 394 U.S. 495, 503, 89 S.Ct. 1252, 1258-59, 22 L.Ed.2d 495 (1969); see generally Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 794-96 (1st Cir.1988) (describing procompetitive policy interests animating per se tying analysis). Since many product “ties” may not prove anti-competitive, notwithstanding their somewhat misleading epithet, “per se ” tie-ins may require a “fairly subtle antitrust analysis” of “market power,” a fact-intensive inquiry aimed at winnowing out only those ties most likely to threaten anti-competitive harm. Id. at 795. Appellants claim three “product” tie-ins: (1) between a university education" }, { "docid": "14742003", "title": "", "text": "Antitrust Litig., 95 F.R.D. 299, 309 (S.D.N.Y.1982); In re Folding Carton Antitrust Litig., 83 F.R.D. 251, 254 (N.D.Ill.1978). The cases cited pertain to section 1 conspiracy claims which have a lower standard for finding market power than cases under section 2 and are inapplicable here. See, e.g., Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 481, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (stating “[m]onopoly power under § 2 requires, of course, something greater than market power under § 1”) quoting Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969); Carpet Group International v. Oriental Rug Importers Ass’n., 256 F.Supp.2d 249, 286-87 (D.N.J.2003) (same); Urdinaran v. Aarons, 115 F.Supp.2d 484, 491 (D.N.J.2000) (same); Julian O. von Kalinowski, Antitrust Laws and Trade Regulation § 25.03[2] (2004) (same). If the direct evidence approach can ever supplant the market definition approach in a § 2 context, it can only do so where a reasonable juror could find the evidence conclusive as to why Defendants’ prices were higher. Geneva Pharmaceuticals, 386 F.3d 485, 500 (“where direct evidence is unavailable or inconclusive, as here, monopoly power may be inferred from” the market definition approach); Blue Cross & Blue Shield v. Marshfield Clinic, 65 F.3d 1406, 1411-12 (7th Cir.1995) (“a reasonable finder of fact cannot infer monopoly power just from higher prices — the difference may reflect a higher quality more costly to provide — and it is always treacherous to try to infer monopoly power from a high rate of return”); Forsyth v. Humana, Inc., 114 F.3d 1467, 1475 (9th Cir.1997) (holding that high prices with no showing of restricted output failed to establish monopoly power). The Plaintiffs’ one-track focus on the price of Remeron compared to the price of generic mirtazipine says nothing about the most important factors that would allow a reasonable juror to conclude that Organon had monopoly power. Indeed, Plaintiffs’ approach, if applied beyond this case, would render most brand name pharmaceutical companies as per se monopolists prior to generic entry. Generics normally enter the market with prices significantly lower" }, { "docid": "11574236", "title": "", "text": "speaking, an impermissible “tie-in” occurs if a seller (viz., URI) enjoys either a monopoly or “appreciable economic power” (“AEP”) in the “tying” product (or service) market, and uses its considerable market leverage to “coerce” a buyer — already intent on purchasing the tying product from the seller — into buying a second, “tied” product that the buyer would not have bought based solely on the quality or price of the tied product itself. See Fortner Enters., Inc. v. United States Steel Corp., 394 U.S. 495, 503, 89 S.Ct. 1252, 1258-59, 22 L.Ed.2d 495 (1969); see generally Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 794-96 (1st Cir.1988) (describing procompetitive policy interests animating per se tying analysis). Since many product “ties” may not prove anti-competitive, notwithstanding their somewhat misleading epithet, “per se ” tie-ins may require a “fairly subtle antitrust analysis” of “market power,” a fact-intensive inquiry aimed at winnowing out only those ties most likely to threaten anti-competitive harm. Id. at 795. Appellants claim three “product” tie-ins: (1) between a university education (URI) and health insurance coverage (LINA); (2) between health care services (UHS) and health insurance coverage (LINA); and (3) between a university education (URI) and health care services (UHS). We agree with the district court however, that appellants failed to allege any “tie-in” claim upon which relief could be granted. In particular, appellants failed to advance a colorable claim as to an indispensable element: that URI had AEP in the relevant tying markets (university education and health care services). AEP or “market power” is the demonstrated ability of a seller “to force a purchaser to do something that he would not do in a competitive market.” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 14, 104 S.Ct. 1551, 1559, 80 L.Ed.2d 2 (1984); see also Grappone, 858 F.2d at 794. AEP may be demonstrated, for example, if the seller holds a monopoly in the tying product (e.g., a patented product), controls a very large share of sales in the tying product market, see id. at 796 (AEP “means significant market power” over" }, { "docid": "17407546", "title": "", "text": "market and showing a defendant’s excess market share within it. PepsiCo, 315 F.3d at 107. “The relevant market must be defined ‘as all products reasonably interchangeable by consumers for the same purposes,’ because the ability of consumers to switch to a substitute restrains a firm’s ability to raise prices above the competitive level.” City of New York v. Grp. Health Inc., 649 F.3d 151, 155 (2d Cir.2011) (quoting Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 496 (2d Cir.2004)); see also Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 238 (2d Cir.2008) (proposed relevant market that clearly does not encompass all interchangeable substitute products, even when all factual inferences are granted in plaintiffs favor, is legally insufficient) (internal citations omitted). At the outset, this Court notes that because Plaintiffs have pleaded the possession of monopoly power through Parnon’s ability to control prices, an inadequate relevant market definition is not fatal to Plaintiffs’ section 2 claim. See PepsiCo, 315 F.3d at 107 (“[T]here is authority to support [the] claim that a relevant market definition is not a necessary component of a monopolization claim.”); du Pont, 351 U.S. at 393, 76 S.Ct. 994 (“Whatever the market may be, we hold that control of price or competition establishes the existence of monopoly power under [section 2].”). Further, “[b]ecause market definition is a deeply fact-intensive inquiry, courts hesitate to grant motions to dismiss for failure to plead a relevant product market.” Todd v. Exxon Corp., 275 F.3d 191, 199-200 (2d Cir.2001); see also Found, for Interior Design Educ. Research v. Savannah Coll, of Art & Design, 244 F.3d 521, 531 (6th Cir.2001) (“Market definition is a highly fact-based analysis that generally requires discovery.” (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992))); Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 436 (3d Cir.1997) (explaining that “in most cases, proper market definition can be determined only after a factual inquiry into the commercial realities faced by consumers”). The relevant geographic market is “in or around Cushing," }, { "docid": "8736586", "title": "", "text": "look to evidence of actual detrimental effects in the absence of market definition and market 'share, but require unambiguous evidence that a defendant can control prices or exclude competition. See, e.g., Blue Cross & Blue Shield United of Wis. v. Marshfield Clinic, 65 F.3d 1406, 1412 (7th Cir.1995); United States Football League v. National Football League, 842 F.2d 1335, 1362 (2d Cir.1988). On the other hand, the Fifth Circuit has rejected a plaintiffs claim in light of the defendant’s low market share even though there was evidence of control over prices. See Dimmitt Agri Indus., Inc. v. CPC Int'l, Inc., 679 F.2d 516, 526 (5th Cir.1982). The Supreme Court has noted on at least two occasions that direct evidence of monopoly power will support an antitrust claim. See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 477, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Indiana Fed’n, 476 U.S. at 460-61, 106 S.Ct. 2009. In Eastman Kodak, Kodak was accused of “tying” the sale of one product to the purchase of a separate product from Kodak, in violation of § 1. After the Court found sufficient evidence that Kodak had in fact tied the two products, it turned to the next question: whether Kodak had the power to raise prices and restrict output in the market for the secondary product. See 504 U.S. at 464, 112 S.Ct. 2072. Because evidence existed that Kodak had increased prices and excluded competition in the market for the secondary product, it bore the “substantial burden” of proving that it did not, in fact, possess monopoly power. Id. at 469, 112 S.Ct. 2072. Similarly, the Indiana Federation Court rejected defendant Federation’s contention that the lack of proof regarding the relevant market required summary judgment in its favor. 476 U.S. at 460, 106 S.Ct. 2009. Instead, the Court looked to evidence that the Federation had actually defeated insurance companies’ requests to view insureds’ x-rays in holding that detailed market analysis was not required. Id. at 461, 106 S.Ct. 2009. As the Indiana Federation Court noted: [T]he finding of actual, sustained adverse effects on competition" }, { "docid": "7211967", "title": "", "text": "of showing, a plaintiff proceeds by defining the relevant market in geographic terms and alleging the defendants’ share of that market relative to other participants. See United States v. Eastman Kodak Co., 63 F.3d 95, 104 (2d Cir.1995); see also Todd v. Exxon Corp., 275 F.3d 191, 199 (2d Cir.2001); AD/SAT, Div. of Skylight, Inc. v. Associated Press, 181 F.3d 216, 226 (2d Cir. 1999). Determining a relevant geographic and product market is a “deeply fact-intensive inquiry,” and for that reason courts often hesitate to grant motions to dismiss for failure to plead a relevant product market. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Todd, 275 F.3d at 199-200. 2. Merced’s Monopolization Claim Merced’s Section 2 claims of monopolization and, in the alternative, at tempted monopolization, are premised on Barclays’s intent and ability to dictate the Daily Index prices on both the ICE and Dow Jones exchanges. By intentionally engaging in large quantities of money-losing purchases and sales in the daily markets to reap profits from its swap contracts, Merced argues, Barclays used its monopoly power to prevent free markets from operating and control prices. (Dkt. No. 1 at ¶ 66-68.) As a result “prices under contracts that settled against or were tied to the Daily Index Prices at the manipulated locations during the Class Period did not result from legitimate market information, supply factors, and demand factors.” (Id. at ¶ 135.) Barclays objects, first, that Merced’s Section 2 claim falls short because it does not describe a relevant product market or barriers to entry for other participants in the market. (Dkt. No. 13 at 19.) It contends that although courts may consider ability to control prices in assessing monopoly power, Merced has not shown that a monopoly can be alleged on that basis alone. It relies on United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 100 L.Ed. 1264 (1956), to argue that analysis of price control makes sense only in the context of other firms’ ability to compete." } ]

[ { "docid": "15552463", "title": "", "text": "structure of the LASH B/L condition was to divide it into two parts, (i) the LASH Barge and (ii) the ocean movement. As to (i) the “LASH Barge” conditions provided for the physical movement of the barges and that the term “carrier” included the LASH Barges. It then undertook to prescribe that only LASH Barge conditions would apply. And then by an adroit emphasis or limitation, it specified that for non-LASH shipments the general ship conditions would apply so that the “carrier” was the shipowner alone. If — as we hold — the LASH Barge is a “ship” and the entire foreign shipment to the United States is covered by COGSA, any effort by the carrier to chop up responsibilities between the legs of the journey would fall under § 1303(8) (note 46, supra). Thus the outcome depends on our interpretation of the statute rather than punctilious compliance with the language and meaning of the Bill of Lading. See Zajicek v. United Fruit Co., 5 Cir., 1972, 459 F.2d 395, 399; Longley, Common Carriage of Cargo 32-33 (1967). If we adopted the viewpoint that such a LASH Barge was not a ship under COGSA, the liability of the carrier would vary according to the place of the injury even though his undertaking under the obvious arrangement of affreightment did not change. For instance, if the damage to the cargo caused by the carrier’s negligence occurred while the barge was over or aboard the ocean vessel, COGSA would be applicable, for no one doubts that the ocean vessel is a ship. But if the damage occurred before the barge was over or loaded aboard, under the strained interpretation of COGSA which the shipper would have us adopt, COGSA would not apply, or if it did, this barge would not be allowed the defense of § 1304(2)(a) until it was loaded over or aboard even though the cargo was never removed and the conditions of carriage did not significantly change. Unseaworthiness Of The Barge Not Reached Although we are urged by Shipper to affirm on the trial court’s alternative ground that the" } ]

[ { "docid": "15761233", "title": "", "text": "STATUTES The fire exemptions touching upon the problem before us are the 19th Century Fire Statute, 46 U.S.C. § 182 and the COG-SA Fire Exemption, 46 U.S.C. § 1304(2)(b). The 19th Century Fire Statute provides: “§ 182. Loss by fire No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.” [Emphasis supplied.] COGSA, §§ 1301(a), 1303 and 1304(1) and (2), provide in pertinent part: “§ 1301. Definitions $ $ * $ 4¡ * (a) The term ‘carrier’ includes the owner or the charterer who enters into a contract of carriage with a shipper.” # # ik * # * “§ 1303, Responsibilities and liabilities of carrier and ship Seaworthiness (1) The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to — (a) Make the ship seaworthy; (b) Properly man, equip, and supply the ship; (c) Make the holds, refrigerating and cooling chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation. [Emphasis supplied.] Cargo (2) The carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.” “§ 1304. Rights and immunities of carrier and ship (1) Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied, and to make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation in accordance with the provisions of paragraph (1) of section" }, { "docid": "14499402", "title": "", "text": "the carrier’s vessel in undamaged condition and discharged in short or damaged condition to establish a prima facie case. Socony Mobil Oil Company v. Texas Coastal and International, Inc. et al., 559 F.2d 1008 (5th Cir. 1977). The carrier then has the burden of demonstrating that it properly and carefully stowed, cared for, and discharged the cargo or if not, that the negligent conduct resulting in damage to the cargo was one of the uncontrollable causes of loss defined in COGSA, 46 U.S.C. 1304(2)(a) through (q). Nichimen Company v. M.V. Farland, 462 F.2d 319 (2d Cir. 1972). If the carrier is successful in proving that neither it nor its agents were negligent in caring for, stowing, or discharging the cargo or that any negligent conduct comes under one of COGSA’s exemption clauses in § 1304(2), then the burden shifts to the shipper to prove that the carrier failed to use due diligence to make the vessel seaworthy and that the unseaworthy condition was a cause of the cargo damage. United States v. Lykes Bros. Steamship Company, 511 F.2d 218 (5th Cir. 1975); Director General of India Supply Mission v. S.S. Maru, 459 F.2d 1370 (2d Cir. 1972). Though a carrier fails to exonerate itself from liability imposed by COGSA, where lack of privity or knowledge of the negligent conduct or unseaworthy condition causing the cargo damage can be shown, then the carrier may seek to limit its liability to the value of the carrier’s interest in the vessel or vessels by which it is fulfilling its carriage contract under the bill of lading and the freight pending on the vessel or vessels. 46 U.S.C. 183(a). For the reasons which follow, the Court finds, as a matter of law, that defendant Central Gulf has failed to bring any of the conduct causing cargo damage under any of the excepted causes of COGSA, though able to demonstrate that Lash Barge CG — 063 was seaworthy. However, Central Gulf as owner of the Lash Barge CG-063 and the mother vessel SS ATLANTIC FOREST, will be entitled to limit its liability to the value" }, { "docid": "14499401", "title": "", "text": "(16) Temporary repairs were made to Lash Barge CG-063 to stop the loss of the liquified urea that was escaping from the hole in the barge. The SS ATLANTIC FOREST then completed its voyage uneventfully, and the cargo described in bill of lading No. 001 was delivered to the plaintiff Agrico Chemical Company at Burnside, Louisiana, in both a damaged and short condition. The cargo consisted only of approximately 100 of the 375 tons of urea and parts of the delivered urea were in a liquified and unusable state. (17) As stipulated to by the parties, damage to the cargo of urea amounted to $88,-203.27. DISCUSSION Plaintiff Agrico Chemical Company and defendant Central Gulf were parties to an optional mode bill of lading which incorporated the provisions of the Carriage of Goods by Sea Act (COGSA). In cargo damage cases such as the present matter, the provisions of COGSA control the rights, obligations, and burden of proof for determining responsibility of the loss. Under COGSA, the shipper need only show that cargo was loaded aboard the carrier’s vessel in undamaged condition and discharged in short or damaged condition to establish a prima facie case. Socony Mobil Oil Company v. Texas Coastal and International, Inc. et al., 559 F.2d 1008 (5th Cir. 1977). The carrier then has the burden of demonstrating that it properly and carefully stowed, cared for, and discharged the cargo or if not, that the negligent conduct resulting in damage to the cargo was one of the uncontrollable causes of loss defined in COGSA, 46 U.S.C. 1304(2)(a) through (q). Nichimen Company v. M.V. Farland, 462 F.2d 319 (2d Cir. 1972). If the carrier is successful in proving that neither it nor its agents were negligent in caring for, stowing, or discharging the cargo or that any negligent conduct comes under one of COGSA’s exemption clauses in § 1304(2), then the burden shifts to the shipper to prove that the carrier failed to use due diligence to make the vessel seaworthy and that the unseaworthy condition was a cause of the cargo damage. United States v. Lykes Bros. Steamship" }, { "docid": "15605894", "title": "", "text": "save for several exceptions — made it, in effect, an insurer of the cargo’s safe transit. See G. Gilmore & C. Black, The Law of Admiralty § 3-22 at 139-40 (2d ed. 1975). The increasing use of bills of lading during the 19th century occurred, in part, because under these instruments carriers could limit their liability. But such attempts to limit liability were unavailing when loss of cargo arose from a failure of the carrier to use due care since contracts exonerating carriers from liability were held to violate public policy. First Pennsylvania Bank v. Eastern Airlines, Inc., 731 F.2d 1113, 1116 (3d Cir.1984). The obligation to use due care is now imposed by statute, 46 U.S.C. §§ 1303(1) and (2) (1982), so that a carrier cannot by contract exculpate itself from this duty in providing a seaworthy vessel or in handling or shipping cargo. In 1921 the Hague Rules adopted this view of a carrier’s liability. These Rules— as amended by the Brussels Convention of 1924 — were adhered to by the United States in 1937. In the previous year Congress had passed the Carriage of Goods by Sea Act (COGSA) ch. 229, 49 Stat. 1207 (codified at 46 U.S.C. §§ 1300-15 (1982)), which adopted the Hague Rules. COGSA allows freedom of contract outside its provisions only if a carrier’s liability is increased, not reduced. Gilmore & Black, supra, § 3-25 at 145. Consequently, a carrier’s liability for cargo damage today has gone from one extreme to the other— from absolute liability to liability predicated only on a showing of fault. In regulating ocean bills of lading under COGSA, Congress created federal law governing the terms of transport of goods by sea. COGSA restricts a carrier’s ability to limit its liability under its bill of lading. Section 1304(5) of that statute establishes a minimum floor of a carrier’s liability: $500 “per package ... or ... customary freight unit.” From the standpoint of a shipper the $500 also acts as a ceiling for its recovery in the event of damage or loss of its cargo. Unless the shipper declares a" }, { "docid": "18937872", "title": "", "text": "case, the Eleventh Circuit wrote: “To permit [the carrier] the benefit of the $500 limitation, despite the finding of the district court that [the carrier] failed to exercise due diligence in preventing damage to the cargo, ... would immunize the carrier from the adverse consequences of the negligent handling of cargo.” Id. at 567. Nothing in the text of COGSA suggests that the $500 limit on liability is available only to carriers who exercise due diligence to insure a seaworthy vessel. To the contrary, COGSA provides: “Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package ... or ... per customary freight unit....” 46 U.S.C. app. § 1304(5) (emphasis added). Furthermore, to hold that a carrier is never entitled to the $500 limitation on liability if it fails to exercise due diligence would render the $500 limitation a nullity. Under COGSA, a carrier may not be held hable in the first place unless it fails to exercise due diligence to make the ship seaworthy. See 46 U.S.C. app. § 1304(1) (“Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy.... ”). Indeed, other circuits have applied the $500 limit even where the carrier failed to exercise due diligence. See, e.g., Rigan Integrated Steel Mills, Inc. v. SS John Weyerhaeuser, 507 F.2d 68, 70, 73 (2d Cir.1974). Accordingly, we find that the district court erred in holding that a carrier is barred from invoking COGSA’s $500 liability limitation whenever it fails to exercise due diligence to provide a seaworthy vessel. IV For these reasons, we conclude that the district court erred in refusing to calculate damages pursuant to COGSA’s $500-per-package-or-per-unit limit on liability. See 46 U.S.C. app. § 1304(5). We decline to address the issues raised in Sabah’s cross-appeal regarding the mitigation and foreseeability of certain damages. The record does" }, { "docid": "12785323", "title": "", "text": "RONEY, Circuit Judge: Plaintiffs successfully demonstrated to the trial court that three cargoes of their oil, loaded in good condition on the Steam- tanker PADRE ISLAND, were contaminated with water when discharged after each voyage. Awarded $131,316.34, plaintiffs appeal the denial of prejudgment interest. Defendants cross-appeal as to liability. We reverse the denial of prejudgment interest but affirm on liability, the findings of fact not being clearly erroneous. Plaintiffs chartered the S/T PADRE ISLAND to transport oil products to various parts of the globe. The first voyage under this charter was without incident, but each of three subsequent voyages forms a cause of action in this case. After each of those voyages, made under bills of lading, the cargo of bunker fuel oil was found contaminated with water after discharge. In reviewing findings of fact, the proper placement of the burden of proof is important. Although the trial spawned an intricate dispute over whether the Carriage of Goods by Sea Act, [COGSA] 46 U.S.C.A. §§ 1300 et seq., applied, at oral argument, both parties informed the Court that, in their estimation, this issue no longer makes a difference in the outcome of the appeal. Since “if bills of lading are issued in the case of a ship under charter party, they shall comply with the terms of this chapter, .” 46 U.S.C.A. § 1305, and since each voyage was made under a bill of lading, we conclude that the burden of proof rules of the Carriage of Goods by Sea Act apply. 46 U.S.C.A. § 1304(1) provides the proper burden of proof allocation: “Whenever loss or damages has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier . . . .” In a case of this kind, the shipper need only show that cargo was loaded in undamaged condition, and discharged in contaminated condition, to establish a prima facie case. The carrier then has the burden of showing that the vessel was seaworthy or that due diligence was used to make it seaworthy. United States v. Lykes Bros. Steamship Co., Inc., 511" }, { "docid": "4076167", "title": "", "text": "in a separate locker in the same hatch as the chicken. After a non-jury trial, the district court entered judgment for the plaintiff for the full invoice price, plus interest, expenses, and costs. Under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.A. §§ 1300-1315, which governs this dispute, the plaintiff establishes a prima facie case by proving the carrier received the cargo in good condition but unloaded it in a damaged condition at its destination. Associated Metals & Minerals Corp. v. M/V Rupert De Larrinaga, 581 F.2d 100, 101 (5th Cir.1978). A clean bill of lading is prima facie evidence that the carrier received the goods it describes. 46 U.S.C.A. § 1303(4). It creates a rebuttable presumption the goods were delivered to the carrier in good condition and thus satisfies that element of the plaintiff’s prima facie case. Emmco Insurance Co. v. Wallenius Caribbean Line, S.A., 492 F.2d 508, 512-13 (5th Cir.1974). Once the shipper presents a prima facie case, the burden shifts to the carrier to prove either that it exercised due diligence to prevent the damage by properly handling, stowing, and caring for the cargo in a seaworthy ship, 46 U.S.C.A. §§ 1303(1) and (2), or that the harm resulted from one of the excepted causes listed in 46 U.S.C.A. § 1304(2). Blasser Bros. v. Northern Pan-American Line, 628 F.2d 376, 381 (5th Cir.1980). See generally 2A Benedict on Admiralty § 56 (7th ed. 1983). Only if the carrier is able to rebut the shipper’s prima facie case by proving that it falls within one of the exceptions does the burden of proof then shift back to the shipper to show the carrier’s negligence was, at the least, a concurrent cause of the loss. United States v. Lykes Bros. Steamship Co., 511 F.2d 218, 224 (5th Cir.1975). The district court found that Omega received the 6,759 cartons of chicken in good condition but the cargo arrived in Barbados completely damaged and unfit for human consumption. The court also found Omega presented no proof to establish that it was not liable for any part of the damage" }, { "docid": "4076168", "title": "", "text": "diligence to prevent the damage by properly handling, stowing, and caring for the cargo in a seaworthy ship, 46 U.S.C.A. §§ 1303(1) and (2), or that the harm resulted from one of the excepted causes listed in 46 U.S.C.A. § 1304(2). Blasser Bros. v. Northern Pan-American Line, 628 F.2d 376, 381 (5th Cir.1980). See generally 2A Benedict on Admiralty § 56 (7th ed. 1983). Only if the carrier is able to rebut the shipper’s prima facie case by proving that it falls within one of the exceptions does the burden of proof then shift back to the shipper to show the carrier’s negligence was, at the least, a concurrent cause of the loss. United States v. Lykes Bros. Steamship Co., 511 F.2d 218, 224 (5th Cir.1975). The district court found that Omega received the 6,759 cartons of chicken in good condition but the cargo arrived in Barbados completely damaged and unfit for human consumption. The court also found Omega presented no proof to establish that it was not liable for any part of the damage to the cargo. The court therefore concluded Terman established a prima facie case of liability unrebutted by Omega. This Court may not set aside these findings unless they are clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7, 99 L.Ed. 20 (1954); Chaney v. City of Galveston, 368 F.2d 774, 776 (5th Cir.1966). Omega argues it proved due diligence in making the ship seaworthy, 46 U.S.C.A. § 1303(l)-(2), as evidenced by a survey of the ship and certification of its refrigeration system just two months before the voyage in question. There was also evidence, however, by its own surveyor, that Omega neither recorded the temperature in the hold nor reinspected the refrigeration equipment at the time the chicken cargo was loaded. The contract of carriage called for the temperature to be maintained at zero to five degrees throughout. The refrigeration logs reflected the temperatures in the lower tween deck ranged from six to fifteen degrees for the entire voyage and those in the upper tween deck ranged from five to" }, { "docid": "4938576", "title": "", "text": "of Lading.” (Jadhav Aff.Ex. 2) Thus, the charter party made provision for the possibility that CP Bermuda would authorize the bills of lading by signing or releasing them. The letterheads of CP Ships and CP Tanker' show identical telephone and telex numbers in the United States. (Jadhav Aff.Exs. 1 and 13) When Samsung wrote to CP Ships requesting an extension of the statute of limitations, CP Tanker responded in the affirmative. (Jadhav Aff.Exs. 11 and 12) The submissions of the parties support a conclusion of a close relationship between CP Ships, and CP Bermuda, in which relationship CP Bermuda had authority to act on behalf of CP Ships. Moreover, defendants have offered no evidence refuting such an affinity; indeed, they have produced no evidence defining the relationship among the three defendants. IV. Under COGSA, a plaintiff shipper establishes a prima facie case of loss by proving delivery of the cargo to the carrier in good condition, and either arrival of less cargo than was loaded or delivery of the goods in damaged condition. Spencer Kellogg, Div. of Textron, Inc. v. S.S. “Mormacsea, ” 703 F.2d 44, 46 (2d Cir.1983); Westway Coffee Corp. v. M.V. Netuno, 675 F.2d 30, 32 (2d Cir.1982). A plaintiff is not required to prove that the carrier was at fault, or to explain how the damage or loss might have occurred. Nissho-Iwai Co. v. M/T Stolt Lion, 617 F.2d 907, 912 (2d Cir.1980). After plaintiff establishes a prima facie case, the burden shifts to the carrier to show that the loss or damage falls within one of the COGSA exceptions enumerated in 46 U.S.C.App. § 1304(2). Westway Coffee Corp., 675 F.2d at 32. A clean bill of lading, representing that the carrier has no reasonable ground to suspect the listed weight is incorrect, and that it has reasonable means of checking the weight, is prima facie evidence of receipt of the listed weight. Id. at 33. In this case, defendants contend that the cargo of liquid caustic soda was incorrectly measured. The loading document, issued by COMTROL, did not show the draft of the vessel, whether" }, { "docid": "185024", "title": "", "text": "‘protect shippers from the overreaching of carriers through contracts of adhesion and to provide incentive for careful transport and delivery of cargo.’” Gamma-10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1251 (8th Cir.1994) (quoting Cameco, Inc. v. S.S. American Legion, 514 F.2d 1291, 1300 (2d Cir.1974)). To this end, COG-SA imposes upon carriers certain affirmative duties designed to ensure the safe transport of cargo, the breach of which results in liability for loss or damage to cargo. See, e.g., COGSA § 3(1), 46 U.S.C.App. § 1303(l)(a) (requiring that a carrier provide a seaworthy ship); COGSA § 3(2), 46 U.S.CApp. § 1303(2) (requiring the carrier to “carefully load, handle, stow, keep, care for, and discharge the goods carried’’). The major compromise that ' COGSA strikes relates to the amount of liability a carrier faces for breach of the affirmative duties COGSA imposes. At the time of COGSA’s enactment, bills of lading often limited the liability of carriers to $100 or less per package. See Jones v. The Flying Clipper, 116 F.Supp. 386, 388 (S.D.N.Y.1953). One of the goals of COGSA was therefore to do away with these paltry limits and establish a minimum per package liability of $600. See id. (citing hearings before the Senate Committee on Commerce on S. 1152, 74th Cong., 1st Sess. (1935), p. 47); see also COG-SA § 3(8), 46 U.S.GApp. § 1303(8) (nullifying any attempt to reduce liability below amount specified by COGSA). On the other hand, maximum liability was also set at $500, unless the shipper chose to pay higher freight in return for a higher valuation. See COGSA § 4(5), 46 U.S.C.App. § 1304(5) (limiting carrier’s liability “in any event ” to $500 unless shipper declares a different value) (emphasis added). Following the enactment of COGSA, there was some question as to whether the language of § 4(5), which limited liability to $500 “in any event,” did away with the doctrine of deviation. The first court to address the argument answered in the negative, and held that an unreasonable deviation by a carrier deprives it of the benefit of the $500" }, { "docid": "14499403", "title": "", "text": "Company, 511 F.2d 218 (5th Cir. 1975); Director General of India Supply Mission v. S.S. Maru, 459 F.2d 1370 (2d Cir. 1972). Though a carrier fails to exonerate itself from liability imposed by COGSA, where lack of privity or knowledge of the negligent conduct or unseaworthy condition causing the cargo damage can be shown, then the carrier may seek to limit its liability to the value of the carrier’s interest in the vessel or vessels by which it is fulfilling its carriage contract under the bill of lading and the freight pending on the vessel or vessels. 46 U.S.C. 183(a). For the reasons which follow, the Court finds, as a matter of law, that defendant Central Gulf has failed to bring any of the conduct causing cargo damage under any of the excepted causes of COGSA, though able to demonstrate that Lash Barge CG — 063 was seaworthy. However, Central Gulf as owner of the Lash Barge CG-063 and the mother vessel SS ATLANTIC FOREST, will be entitled to limit its liability to the value of Lash Barge CG-063, the other Lash barges consigned to the New Orleans voyage, the SS ATLANTIC FOREST and all pending freight for cargo aboard these vessels since the collision holing the Lash Barge CG-063 was caused by navigational errors which were outside the privity or knowledge of the vessel owner and no condition of unseaworthiness caused the cargo damage. Since the value of these vessels and their cargo should exceed the stipulated cargo damage, Central Gulf is unable to limit its liability beyond the stipulated amount. PRIMA FACIE CASE Plaintiff Agrico Chemical Company has demonstrated that it was issued a clean bill of lading signifying that the cargo of urea was loaded while in good condition and that the cargo was delivered to its destina tion in a damaged condition and short. It has thus established a prima facie case in its action for damages against the cargo carrier Central Gulf. EXCEPTED CAUSES UNDER 46 U.S.C. 1304 2(a) through (q) Once a prima facie case is made by the shipper, then the burden shifts" }, { "docid": "16579989", "title": "", "text": "them of liability for cargo loss or damage from a variety of causes, including their own negligence. Shippers sought to have these exculpatory clauses banned from ocean bills of lading, while shipowners lobbied for statutory exemption from liability for certain causes. The result of this debate was the Harter Act, which compromised by requiring the shipowner to use due diligence to make the vessel seaworthy but exempted him from liability for “damage or loss resulting from faults or errors in navigation, or in the management of said vessel ...” 27 Stat. 445 (1893). This compromise failed to solve the conflict between cargo interests and shipowners. In The Isis [May v. Hamburg-Amerikanische Aktiengesellschaft ] 290 U.S. 333, 54 S.Ct. 162, 7 L.Ed. 533 (1933), the Supreme Court held that for the shipowner to be exonerated from errors in navigation and management he had to prove that due diligence was used “in all respects” to make the ship seaworthy. Proof of seaworthiness was held to be a condition precedent to protection by the Harter Act exemptions, regardless of whether or not there was a causal relationship between the unseaworthiness and the cargo loss or damage. The weighty burden of proof which The Isis imposed on shipowners was a decisive factor in bringing about the enactment by Congress of COGSA in 1936. COGSA follows the Harter Act closely but requires that there be a causal relationship between unseaworthiness and cargo damage for liability to be imposed. In pertinent part, COGSA states: 46 U.S.C. § 1303(1) The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to— (.a) Make the ship seaworthy; (b) Properly man, equip, and supply the ship; § 1304(1) Neither the carrier nor the ship shall be liable for loss or damage resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned ... Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the" }, { "docid": "185023", "title": "", "text": "largely by the extent, scope, and nature of the risk it imposed on the cargo. Though the touchstone of deviation was the notion that a carrier had somehow breached the contract of carriage in a fundamental way, courts did not require the breach of an explicit contractual clause. See, e.g., St. Johns, 263 U.S. at 123-24, 44 S.Ct. 30 (holding that clean bill of lading implied a promise that goods would be shipped below deck). Rather, the doctrine of deviation was designed to enforce adherence to certain assumptions relating to specific activities a carrier was or was not expected to undertake. Although this open-ended rationale might conceivably encompass a wide variety of conduct, the enactment of COGSA altered the contours of the deviation doctrine and limited the circumstances under which it applies. It is against this backdrop of COGSA which the deviation doctrine must now be interpreted. Enacted in 1936, COGSA is a fault-based liability system that reflects a compromise of rights and liabilities between cargo interests and carriers. “One purpose of COGSA is to ‘protect shippers from the overreaching of carriers through contracts of adhesion and to provide incentive for careful transport and delivery of cargo.’” Gamma-10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1251 (8th Cir.1994) (quoting Cameco, Inc. v. S.S. American Legion, 514 F.2d 1291, 1300 (2d Cir.1974)). To this end, COG-SA imposes upon carriers certain affirmative duties designed to ensure the safe transport of cargo, the breach of which results in liability for loss or damage to cargo. See, e.g., COGSA § 3(1), 46 U.S.C.App. § 1303(l)(a) (requiring that a carrier provide a seaworthy ship); COGSA § 3(2), 46 U.S.CApp. § 1303(2) (requiring the carrier to “carefully load, handle, stow, keep, care for, and discharge the goods carried’’). The major compromise that ' COGSA strikes relates to the amount of liability a carrier faces for breach of the affirmative duties COGSA imposes. At the time of COGSA’s enactment, bills of lading often limited the liability of carriers to $100 or less per package. See Jones v. The Flying Clipper, 116 F.Supp. 386, 388" }, { "docid": "10079534", "title": "", "text": "CROAKE, District Judge. This is an action in admiralty for damage to a shipment of one hundred and seven Goggomobile automobiles transported from Hamburg, Germany, to New York, aboard the vessel M. Y. TOFEVO, during December 1958 and January 1959. Libelants bring this action as owners of the cars involved. It is undisputed that the Goggomobiles were damaged during the voyage while in the possession, custody and control of the respondent shipowners. The rights and duties of the parties herein are governed by the United States Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq. Libelants allege that any damage to the automobiles was the result of negligent and improper stowage of this cargo by the respondent. The respondent takes the position that any damage sustained by the cargo was caused by severe weather encountered by the vessel which constituted a peril of the sea within the meaning of the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(2), which provides: “(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from— ****** “(c) Perils, dangers, and accidents of the sea or other navigable waters; “(d) Act of God. * * *” Respondent further asserts that the cargo of Goggomobiles was properly stowed aboard the vessel and that due diligence was exercised to make the vessel seaworthy before the voyage. In the event it is determined by the court that respondent is liable for damages, a second issue raised is whether the customary freight unit was the cubic meter or the vehicle itself for purposes of determining respondent’s limitation of liability pursuant to 46 U.S.C. § 1304(5). This section provides that a carrier shall not be liable for any loss “in an amount exceeding $500 per package * * * or in case of goods not shipped in packages, [$500] per customary freight unit, * * unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. * * * ” On December 15, 1958 the shipment" }, { "docid": "16579990", "title": "", "text": "of whether or not there was a causal relationship between the unseaworthiness and the cargo loss or damage. The weighty burden of proof which The Isis imposed on shipowners was a decisive factor in bringing about the enactment by Congress of COGSA in 1936. COGSA follows the Harter Act closely but requires that there be a causal relationship between unseaworthiness and cargo damage for liability to be imposed. In pertinent part, COGSA states: 46 U.S.C. § 1303(1) The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to— (.a) Make the ship seaworthy; (b) Properly man, equip, and supply the ship; § 1304(1) Neither the carrier nor the ship shall be liable for loss or damage resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned ... Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemption under this section. (2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from— (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship; The resolution of claims arising under COGSA necessarily is governed by the assignment of burdens of proof. The carrier has the burden of proof in bringing itself within COGSA’s 1304(2)(a) exemption by showing that the cargo loss or damage resulted from an error of navigation or management of the vessel. Should the shipowner sustain its burden, the burden then shifts to the cargo interest to establish unseaworthiness and that that unseaworthiness was the cause of the damage. If the cargo interest carries this burden, the shipowner could still be exempted from liability by proving that due diligence was exercised to make the ship seaworthy. California and Hawaiian Sugar Co. v. Columbia Steamship Co., 391 F.Supp. 894 (E.D.La.1972); affirmed 510 F.2d 542 (5th" }, { "docid": "11142971", "title": "", "text": "46 U.S.C. § 1305; United States v. Wessel, Duval & Co., 115 F.Supp. 678, 682-683 (S.D. N.Y.1953). As such, the carrier, which is defined in Section 1301(a) of COGSA as “the owner or the charterer who enters into a contract of carriage with a shipper” is bound, before and at the beginning of the voyage, to exercise due diligence to make the ship seaworthy, make all parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation, and to properly and carefully load, handle, stow and discharge the goods carried. 46 U.S. C. § 1303(1) (2). Plaintiffs’s prima facie case is established by proof merely of receipt of the cargo by the carrier in good order and delivery at destination damaged. Daido Line v. Thomas P. Gonzalez Corp., 299 F.2d 669, 671 (9th Cir. 962). This showing of good condition at time of shipment sufficient for plaintiff’s prima facie case is satisfied by the introduction into evidence of a clean on board bill of lading. 46 U.S.C. § 1303 (4); Compagnie De Navigation Fraissinet & Cyprien Fabre, S.A. v. Mondial United Corp., 316 F.2d 163, 172-173 (5th Cir. 1963); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449, 452 (2d Cir. 1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952). The burden of proving that such damage was not due to its negligence or was occasioned by one of the “excepted causes” enumerated in Section 1304(2) of COGSA is then cast upon the carrier. Daido Line v. Thomas P. Gonzalez Corp., supra; American Tobacco Co. v. The Katingo Hadjipatera, supra; The Guanancita, 69 F.Supp. 928, 930 (S.D.Fla.1947); Mente & Co. v. Isthmian S.S. Co., 36 F. Supp. 278 (S.D.N.Y.1940), aff’d, Quarrington Court, 122 F.2d 266 (2d Cir. 1941). This follows from the fact that the discharge of the carrier’s “extraordinary duty” as a bailee is under its exclusive control. The facts and circumstances which may serve to relieve it from liability when cargo for which a clean bill of lading has been issued is out-turned damaged, are peculiarly" }, { "docid": "17885888", "title": "", "text": "Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 1300 et seq. Discussion I. General Provisions of COGSA COGSA defines the duties, responsibilities, rights, and immunities of ocean “carri ers,” a term which includes time charterers such as Lloyd who enter into a contract of carriage with a shipper. See 46 U.S.C. § 1301. Its provisions apply to “contracts of carriage.” 46 U.S.C. § 1300. Bills of lading constitute contracts of carriage “from the moment at which such bill[s] of lading regulate[] the relation between a carrier and a holder of the [bills of lading].” 46 U.S.C. § 1301(b). Under COGSA, a carrier is bound to exercise due diligence to make the ship seaworthy. 46 U.S.C. § 1303(1). A carrier also “shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.” 46 U.S.C. § 1303(2). However, a carrier is not liable for damages resulting from unseaworthiness if it can show that due diligence was exercised. See 46 U.S.C. § 1304(1). A carrier also is not responsible if cargo loss or damage results from an .“[a]ct or omission of the shipper or owner of goods, his agent or representative ...;” 46 U.S.C. § 1304(2)(i); or if the loss or damage arises “from an inherent defect, quality, or vice of the goods;” 46 U.S.C. § 1304(2)(m). Finally, a carrier can exempt itself from liability if it can establish that cargo loss or damage results from “[a]ny other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier____” 46 U.S.C. § 1304(2)(q). Where goods are damaged between the time of manufacture and delivery to the ultimate buyer, a shipper or consignee can establish a prima facie case under COGSA for recovery of damages from the carrier if he can show that the damage occurred while the goods were in the custody of the carrier. See Nichimen Company v. M.V. Farland, 462 F.2d 319 (2d Cir.1972). This can be done through proof of delivery of the goods in good condition to the" }, { "docid": "5016970", "title": "", "text": "that defendant’s vessel was not fit for receipt of the cargo, the act of plaintiffs inspector certifying the fitness of the hold establishes an affirmative defense which exonerates defendant. Defendant first points to the charter party which provides that the owners are to have the charterer’s representative pass the holds as clean or ready. Since plaintiffs representatives did judge No. 6 Hold to be fit for the zircon sand, defendant asserts the applicability of the section of COGSA providing “neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from ... [any] act or omission of the shipper or owner of the goods, his agent or representative” 46 U.S.C.App. § 1304(2)(i). Because plaintiffs inspector certified the hold as fit to store plaintiffs zircon sand, defendant maintains that such certification was an “act or omission of the shipper” precluding a finding of liability on defendant. The court, however, does not accept defendant’s claim. Section 1303(1) of COGSA provides: The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to make the holds, refrigerating and cooling chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 46 U.S.C.App. § 1303(1). It has long been recognized that stowage falls within the scope of a carrier’s warranty of seaworthiness. Nuzzo v. Rederi, A/S Wallenco, 304 F.2d 506, 508 (2d Cir.1962); Blommer Chocolate Co. v. Nosira Sharon Ltd., 776 F.Supp. 760, 776 (S.D.N.Y.1991), aff’d, 963 F.2d 1522 (2d Cir.1992). In a situation similar to the case at bar, the court found that rust scale which caused damage to stowed cargo constituted a breach of the warranty of seaworthiness. GTS Industries S.A. v. S/S Havtjeld, 887 F.Supp. 531, 537 (S.D.N.Y.1994), aff’d, 68 F.3d 1531, 1535-36 (2d Cir.1995). The plain language of COGSA demonstrates that the Charter Party may not lessen any obligations imposed upon the carrier. Specifically, the law states: Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or" }, { "docid": "13854090", "title": "", "text": "part of the shipowner to make the ship seaworthy. There is, therefore, no absolute duty to provide a seaworthy ship. However, the burden of proving that due diligence was exercised to make the ship seaworthy falls upon the owner of the vessel, Carriage of Goods by Sea Act, §§ 3(1) (a), 4(1), 46 U.S.C.A. §§ 1303(1) (a), 1304(1). See also J. C. Penney Co. v. American Express Co., 201 F.2d 846 (2d Cir., 1953); Schroeder Bros. Inc. v. The Saturnia, 226 F.2d 147 (2d Cir. 1955). This Court finds that APL failed to establish or prove that it used reasonable care or due diligence in assuring the seaworthiness of the President Monroe. The statutory obligation of the carrier to use due diligence to make its vessel seaworthy is either met or not met when the vessel “breaks ground.” Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq. The hole in the coaming of the number six hold deep tank could easily have been discovered by APL had it ballasted that tank in testing the ship after it took delivery of the vessel from the ship builders. APL has failed to show the Court that such testing would have been either difficult or even burdensome for it to have performed. The shipowner had a duty to assure the plaintiffs in this action that their cargo would remain dry and intact once plaintiffs turned said cargo over to defendant APL. If a shipowner fails in his duty to use due diligence to make the ship seaworthy, the shipowner, and not the cargo owner, assumes the risk of damage to the cargo. See Ore Steamship Corporation v. D/S A/S Hassel, 137 F.2d 326 (2 Cir. 1943). APL has not convinced this Court that it used any efforts at all to see to it that the dry cargo space aboard the President Monroe was watertight and secure. Therefore, it is this Court’s conclusion that the evidence shows that the President Monroe was unseaworthy under the definitions provided by statute in the Carriage of Goods by Sea Act." }, { "docid": "5598115", "title": "", "text": "has used due diligence to provide a seaworthy-vessel should not be liable for damage or loss resulting from faults or errors in navigation or in the management of the vessel. The net position of the Harter Act was this: the carrier could not contract out of the duty to use care to put his vessel in seaworthy condition or to use care with respect to cargo, but once he had fulfilled these duties, he could not be held liable for the negligence of those who navigated and managed the vessel. [It will be noted that negligent management of the vessel, from which the statute exonerates the carrier, could simultaneously constitute lack of care with respect to cargo, for which the statute holds the carrier liable; this apparent contradiction, the subject of many law suits, is relevant to this case and will be discussed below.] The compromise of the Harter Act was so well received that it was embodied in main outline by a worldwide conference of maritime nations proposing the “Hague Rules” as a universal guide to treatment of the shipper-carrier relation. In 1936, in order to update the Harter Act to conform more closely with the world conference proposals, the Congress passed COGSA. The Harter Act was thus largely supplanted by COGSA, and the former, although it still retains some importance, is not relevant to the instant suit other than in its case law interpreting provisions now also included in COGSA. 2. The relation between bills of lading and COGSA. Section 3(1) of COG-SA, 46 U.S.C. § 1303(1), and section 3(2), 46 U.S.C. § 1303(2), set forth broadly the affirmative grounds upon which a shipper may recover from the carrier-, and sections 4(1), 46 U.S.C. § 1304(1), and 4(2), 46 U.S.C. § 1304(2), set out the specific exceptions from liability enjoyed by the carrier. The enacting clause in COGSA, 46 U.S.C. § 1300, provides that every bill of lading shall have effect subject to the provisions of the Act; hence a bill of lading is read as if COGSA were incorporated by reference. It will be noted that COGSA’s" } ]

[ { "docid": "23547526", "title": "", "text": "substance offense. Flores further contended, however, that he could seek relief from the BIA’s final order of removal via a petition for a writ of habeas corpus under 28 U.S.C. § 2241. In December 1999, a panel of this court granted the government’s motion and dismissed Flores petition for lack of jurisdiction without further elaboration. While the government’s motion to dismiss Flores’s petition for review was pending, in November 1999, Flores filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Southern District of Texas. Flores’s habeas petition raised statutory and constitutional claims and reiterated the arguments raised in his petition for review — i.e., that, on account of the age of his burglary conviction, Flores was not removable as an aggravated felon and was not ineligible for relief from removal under 8 U.S.C. § 1229b. Flores also reiterated his argument that his charging document did not include an essential element of the offense. Relying on this court’s decision in Max-George v. Reno, 205 F.3d 194 (5th Cir.2000), the magistrate judge recommended dismissal of Flores’s habeas petition for lack of jurisdiction. Over Flores’s objections, the district court adopted the magistrate’s recommendation in August 2000. In response, Flores filed a timely notice of appeal from the dismissal of his habeas petition. Flores also filed a motion to reinstate his petition for direct review of the BIA order. In October 2000, this court granted Flores’s motion to reinstate his petition for review, and a new briefing order was subsequently issued. In November 2001, this court also granted Flores’s unopposed motion to consolidate his petition for review of the BIA order and his appeal of the dismissal of his petition for a writ of habeas corpus. In February 2002, this court denied the government’s motions to dismiss both Flores’s petition for review and his appeal of the dismissal of his habeas petition. II These consolidated appeals present two jurisdictional questions: (1) whether this court has jurisdiction to consider the statutory and constitutional claims presented in Flores’s petition for direct review of the BIA’s final order of" } ]

[ { "docid": "3466202", "title": "", "text": "General, in certain circumstances, to exercise discretion to waive the deportation of an otherwise deportable alien. In November 1998, the Board of Immigration Appeals (BIA) affirmed the immigration judge’s order and dismissed Asad’s appeal. This court dismissed Asad’s petition for review of the BIA decision after determining it lacked appellate jurisdiction under section 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). On March 31, 1999, Asad filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 with the United States District Court for the Middle District of Tennessee, in which he challenged the BIA’s decision that section 440(d) precluded him from seeking a discretionary waiver of his deportation order via section 212(c). Asad also claimed that section 440(d) violated the Equal Protection Clause by affording discretionary relief for some aliens, but denying it for others. The district court granted the government’s motion to dismiss the case on October 7, 1999. The district court concluded that the BIA’s finding that Asad was statutorily ineligible for section 212(c) relief was not a retroactive application of AEDPA section 440(d) and did not violate his due process rights. Furthermore, the district court rejected the petitioner’s claim that section 440(d)’s application in Asad’s case violated the Equal Protection Clause because the distinction in section 440(d) between excluda-ble and deportable aliens had a rational relationship to the legitimate governmental purpose of expeditiously removing from the country aliens convicted of crimes. Asad filed this timely appeal. II. This court reviews de novo a district court’s judgment dismissing a habeas corpus petition filed under 28 U.S.C. § 2241. See Mustata v. United States Dep’t of Justice, 179 F.3d 1017, 1019 (6th Cir.1999). III. First we must address the complex statutory background that provides the foundation for this case. This case is governed by the INA. Former INA section 212(c), codified at 8 U.S.C. § 1182(c) (1995), provided: Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may" }, { "docid": "22630707", "title": "", "text": "and the scheduled deportation violated his due process rights. The government moved to dismiss the § 2241 petition for lack of jurisdiction. The district court granted a temporary restraining order staying deportation; ultimately, the government agreed to release Lara and stay deportation until the district court’s jurisdiction was resolved. Lara then moved to amend his § 2241 petition to include review of the BIA’s February 1997 dismissal of his appeal. - Lara again claimed that the BIA had erred in finding his conviction fell under § 241(a)(2)(C). While the district court considered Lara’s § 2241 petition, Lara moved the BIA for reconsideration of its denial of his motion to reopen. The BIA denied the motion. It noted that, to the extent to which the motion to reconsider raised entirely new grounds for reopening, it was barred because Lara was only permitted to file one motion to reopen under 8 U.S.C. § 3.2(c)(2) (1997). The BIA also affirmed its finding that Lara had not complied with the Lozada requirements for establishing ineffective assistance and declined to modify those requirements. Lara timely petitioned for review of the denial of the motion to reconsider. The district court subsequently granted Lara’s motion to amend his § 2241 petition, and then granted the petition. First, relying on United States ex rel. Marcello v. District Director, 634 F.2d 964 (5th Cir.1981), the district court found that it had jurisdiction over Lara’s § 2241 petition because Lara had not “deliberately bypassed” available review of the February 1997 decision in the Fifth Circuit, but rather had been precluded from doing so by his counsel’s ineffectiveness. On the merits, the district court rejected the BIA’s February 1997 decision. It held that, as a matter of statutory interpretation, Lara’s conviction did not fall under § 241(a)(2)(C) and therefore was not a de-portable offense. Because Lara was deported for an offense which was not a basis for deportation, the court held, that deportation represented a gross miscarriage of justice. The district court concluded that the BIA had erred in dismissing the appeal, vacated the February 1997 order, and remanded the case" }, { "docid": "10202294", "title": "", "text": "Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. To the extent that Mitchell’s Rule 59(e) motion to alter or amend the judgment sought to undo the district court’s denial of habeas relief on the merits, it was an unauthorized successive petition that the district court lacked jurisdiction to entertain. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Williams v. Thaler, 602 F.3d 291, 312 (5th Cir. 2010); Crone v. Cockrell, 324 F.3d 833, 836-38 (5th Cir. 2003). To the extent that the Rule 59(e) motion challenged the denial of Mitchell’s due process claim as procedurally defaulted, it was not a successive § 2254 petition, but Mitchell needs a COA to proceed on appeal. See § 2253(c)(1)(B); see also Gonzalez, 545 U.S. at 532 & n.4, 125 S.Ct. 2641; Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011). Because we discern no legal points arguable on their merits regarding this aspect of the Rule 59(e) ruling, the attempt to appeal that issue is frivolous, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), and reasonable jurists could not debate whether it is adequate to- deserve encouragement to proceed further, see Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. With respect to these postjudgment rulings, we DISMISS this matter for lack of jurisdiction as remand would be futile. See Alvarez, 210 F.3d at 310. We deny Mitchell’s request for appointment of counsel. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985). COA -DENIED IN PART AND DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "22630718", "title": "", "text": "the IJ’s decision, and voluntarily departed the country). Other courts have gone farther, finding that any collateral attack on a prior deportation proceeding was barred by a waiver of the direct attack. See Ramirez-Juarez, 633 F.2d at 175 (“Petitioners did not appeal the 1977 deportation decision, and voluntarily departed the United States on November 16; 1977. They consequently waived judicial review of that determination' and cannot attack it now.”); Hernandez-Almanza, 547 F.2d at 103 (“Since Almanza chose not to pursue the administrative remedy of appeal to the Attorney General and since he departed the United States after the issuance of his exclusion order, he may not now obtain judicial review of that order.”). It is true that, in Malone, the BIA noted that Malone had withdrawn her administrative appeal, and did not discuss this in its finding that Malone had suffered a gross miscarriage of justice. See Malone, 11 I & N Dec. at 730. However, given Steffner, Ponce-Gonzalez, and the intervening circuit court decisions, the omission in Malone does not show that the BIA’s decision here was an abuse of discretion, see Toscano Gil v. Trominski, 210 F.3d 470, 473-74 (5th Cir.2000) (deciding that abuse of discretion standard should apply to “procedural due process claim” based on BIA’s failure to “follow or distinguish precedent”) (citing Diaz-Resendez v. INS, 960 F.2d 493, 496-98 (5th Cir.1992)). See also Beckford, Int. Dec. 3425 (noting that, in Matter of Roman, no showing of a gross miscarriage was made “because the respondent had admitted the allegations and conceded deportability at the prior hearing”). In sum, even if we assume that the district court would have jurisdiction over Lara’s § 2241 claim if Lara could demonstrate that his prior deportation involved a gross miscarriage of justice, we find that the BIA did not err in finding that Lara had not made this demonstration. Therefore, the district court lacked jurisdiction to consider Lara’s § 2241 petition. Ill The other issue before us is whether the BIA erred in denying Lara’s motion to reconsider its denial of his motion to reopen proceedings on the basis of ineffective" }, { "docid": "22630706", "title": "", "text": "was inherently encompassed in the “possessing” or “owning” of a firearm, which were explicitly listed. Lara’s appeal was dismissed. Lara’s attorney, Lionel Perez (“Perez”) did not inform him of the BIA’s decision until after the statutory period for seeking review in this court had expired. Therefore, no petition for review was attempted. Lara retained new counsel, who in April 1997 filed a motion to reopen the deportation proceedings on the basis of ineffective assistance of counsel. The BIA denied the motion to reopen, finding that Lara had not complied with the procedural requirements for stating an ineffective assistance claim set forth in Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). Following the issuance of the BIA decision, Lara was ordered to report for deportation and denied a stay. He surrendered to INS custody. On April 29, 1997 — the day before his scheduled deportation — Lara filed a 28 U.S.C. § 2241 petition in the district court. He claimed that the BIA’s refusal to consider the merits of the motion to reopen and the scheduled deportation violated his due process rights. The government moved to dismiss the § 2241 petition for lack of jurisdiction. The district court granted a temporary restraining order staying deportation; ultimately, the government agreed to release Lara and stay deportation until the district court’s jurisdiction was resolved. Lara then moved to amend his § 2241 petition to include review of the BIA’s February 1997 dismissal of his appeal. - Lara again claimed that the BIA had erred in finding his conviction fell under § 241(a)(2)(C). While the district court considered Lara’s § 2241 petition, Lara moved the BIA for reconsideration of its denial of his motion to reopen. The BIA denied the motion. It noted that, to the extent to which the motion to reconsider raised entirely new grounds for reopening, it was barred because Lara was only permitted to file one motion to reopen under 8 U.S.C. § 3.2(c)(2) (1997). The BIA also affirmed its finding that Lara had not complied with the Lozada requirements for establishing ineffective assistance and declined to" }, { "docid": "10830515", "title": "", "text": "order of deportation or removal. Id. Because Petitioner did not file his review petition until the thirty-first day after the issuance of the BIA’s deportation order, the Court concluded that it was without jurisdiction to consider the review petition or to extend the time for appeal. Id. One day before Petitioner was to surrender to INS custody for deportation, on January 26,1998, Petitioner filed a petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2241, seeking judicial review of his deportation order. The government responded that the district court lacked subject matter jurisdiction; that the application of AEDPA § 440(d) to Petitioner’s case precluded the relief sought by Petitioner even if the district court had jurisdiction to hear the matter; and that application of § 440(d) did not violate the presumption against retroactivity and did not violate equal protection. The district court conducted a hearing on January 26, 1998, and thereafter issued an Order of Remand on February 9, 1998. The district court remanded the case to the BIA to allow the BIA to address on appeal the limited factual issue of whether Petitioner served five years of his sentence. The district court further instructed that its decision was subject to being vacated if the United States Court of Appeals for the Second Circuit reversed the decision in Mojica v. Reno, 970 F.Supp. 130 (E.D.N.Y.1997) before the BIA issued an opinion on Petitioner’s appeal. It is from the district court’s order remanding Petitioner’s case to the BIA for determination of whether Petitioner served five years or more in prison, and therefore was ineligible for relief from deportation, that the government now appeals. ANALYSIS A. THE DISTRICT COURT’S JURISDICTION The government argues that the district court erred in exercising jurisdiction over Petitioner’s application for a writ of habeas corpus under 28 U.S.C. § 2241, particularly in light of the recent amendments to the INA, codified at 8 U.S.C. § 1182 et seq., that resulted from the enactment of the AEDPA and IIRIRA. This Court reviews a district court’s decision on a motion to dismiss" }, { "docid": "22630719", "title": "", "text": "decision here was an abuse of discretion, see Toscano Gil v. Trominski, 210 F.3d 470, 473-74 (5th Cir.2000) (deciding that abuse of discretion standard should apply to “procedural due process claim” based on BIA’s failure to “follow or distinguish precedent”) (citing Diaz-Resendez v. INS, 960 F.2d 493, 496-98 (5th Cir.1992)). See also Beckford, Int. Dec. 3425 (noting that, in Matter of Roman, no showing of a gross miscarriage was made “because the respondent had admitted the allegations and conceded deportability at the prior hearing”). In sum, even if we assume that the district court would have jurisdiction over Lara’s § 2241 claim if Lara could demonstrate that his prior deportation involved a gross miscarriage of justice, we find that the BIA did not err in finding that Lara had not made this demonstration. Therefore, the district court lacked jurisdiction to consider Lara’s § 2241 petition. Ill The other issue before us is whether the BIA erred in denying Lara’s motion to reconsider its denial of his motion to reopen proceedings on the basis of ineffective assistance of counsel. As the parties agree, we have jurisdiction to consider the BIA’s denial of reconsideration. There is no statutory provision for reopening; the authority to reopen derives solely from regulations promulgated by the Attorney General. See INS v. Doherty, 502 U.S. 314, 322, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); 8 C.F.R. § 3.2 (1999). The regulations authorize, but do not require, the BIA to reopen proceedings under, certain circumstances. See Doherty, 502 U.S. at 322-23, 112 S.Ct. 719. The grant of a' motion to reopen is therefore discretionary. See id. The attorney general has “broad discretion” to grant or deny such a motion. Id.; see also Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.1993) (same). We therefore apply a highly deferential abuse of discretion standard in reviewing the BIA’s denial of a motion to reopen. See Pritchett, 993 F.2d at 83 (“The standard is whether the Board has acted within the bounds of an abundant discretion granted it by Congress”) (internal citation omitted). “[T]he abuse of discretion standard applies to motions" }, { "docid": "15423422", "title": "", "text": "Eastern and Central Europeans to obtain suspension of their deportation orders under certain circumstances. See 8 C.F.R. § 3.43 (1999). As a result, the INS placed Fedorca under an order of supervision and released him. In May 1998, Fedorca filed a motion to reopen his deportation proceedings so that he could apply for suspension of deportation, and the IJ granted the motion. But after Fedorca admitted at his hearing before the IJ that he failed to leave the United States by his voluntary departure deadline, the IJ reconsidered and reversed his grant to reopen the proceedings. The legal consequence of the IJ’s reversal was to preserve Fedorca’s original deportation order. The IJ explained that Fedorca’s abuse of voluntary departure barred him from eligibility for suspension of deportation for five years pursuant to 8 U.S.C. § 1252b(e)(2). Fedorca appealed to the Board of Immigration Appeals (BIA), contending that the IJ erred in not allowing him to present evidence that he was never advised of the consequences of allowing his voluntary departure to expire or that special circumstances excused his failure to leave the United States. His appeal to the BIA remains pending. On October 1, 1998, Fedorca sought two additional avenues of relief. First, he applied for a discretionary stay of deportation with the District Director of the INS pending a ruling on his appeal to the BIA. He argued that his deportation would be unfair because he was denied due process during the hearing on his motion to reopen and that deportation would cause extreme hardship to his family. Second, he filed in the district court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that his deportation would violate the Constitution and federal law because the IJ denied him due process by not allowing him to explain that the five-year bar of § 1252b(e)(2) did not apply to him. The District Director denied Fedorca’s request for a discretionary stay on October 22, 1998. With regard to the petition for a writ, the government moved to dismiss, arguing that Fedorca was seeking judicial review" }, { "docid": "7953577", "title": "", "text": "contends the district court erred in refusing to grant him leave to amend his complaint rather than dismissing his case. District courts have wide latitude to consider requests for leave to amend. In deciding whether to permit an amendment, a district court may consider factors such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously! allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). We conclude that the district court gave Rogers sufficient prior opportunity to plead his best case and amend his complaint, and the district court did not abuse its discretion in dismissing Rogers’s case without permitting Rogers to file a third complaint. See, e.g., U.S. ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 403-04 (5th Cir. 2004) (holding that the district court did not abuse its discretion in denying leave to file a third amended complaint where the plaintiff had already been given opportunities to amend and did not indicate what additional facts he could plead to correct the deficiencies in his complaint). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. , Rogers does not appeal the dismissal of his claims for violations of his Fourteenth Amendment right to due process, his Texas Whistleblower Act claims, or his defamation claims, except his defamation claim against Coleman. . Other allegations include: \"Chief Rogers was terminated ... in retaliation for the legitimate pursuit of his duties as the chief law enforcement officer of the City of Yoakum \"Chief Rogers was disciplined, retaliated against for exercising and performing his official law enforcement duties and \"Chief Rogers was disciplined, retaliated against for exercising and performing his official law enforcement duties....” . His allegations under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, are simply" }, { "docid": "20736146", "title": "", "text": "is ordered removable because he or she committed a certain crime.” Id. at 342; see also id. at 337 (“We do not read any exceptions into INA § 242(a)(2)(C) that bars our jurisdiction over petitions to review removal orders against aliens convicted of certain crimes.”). At the same time, the Court of Appeals noted that, “[ajlthough not all challenges that an alien may launch against his removal are cognizable under habeas, purely legal statutory and constitutional claims are within § 2241’s scope.” Id. at 342. The Second Circuit has thus affirmed a district court’s finding of jurisdiction over a section 2241 habeas petitioner which raised “pure questions of law,” ie., “the BIA’s determination that it cannot legally consider St. Cyr’s request to exercise its discretion,” rather than a challenge to “the BIA’s refusal to exercise its discretion in his favor.” St. Cyr, 229 F.3d at 410. The court concludes that section 1252(d) applies only to judicial review of final orders of removal in the Courts of Appeals pursuant to 8 U.S.C. § 1252(a)(1). The court also finds that the petitioner did not have “available” to her “as of right” the opportunity to present her constitutional claim to the IJ and BIA. 8 U.S.C. § 1252(d)(1). Indeed, the IJ and the BIA ruled explicitly, in response to the petitioner’s other equal protection and due process arguments, that such claims cannot be adjudicated by either the IJ or the BIA. See Brief in Support of Motion for Stay of Removal (Dkt. No. 9), Ex. A & B. Thus, for this alternative reason, the court finds that section 1252(d) does not create a statutory, jurisdictional exhaustion requirement for constitutional claims raised by aliens like the petitioner in habeas proceedings. As such, on both grounds, the statutory exhaustion requirement of section 1252(d) does not apply by its own terms to the petitioner’s equal protection claim. Unlike the statutory exhaustion language at issue in Bastek under 7 U.S.C. § 6912(e), which provided that “a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an" }, { "docid": "12332361", "title": "", "text": "Smith challenges the district court’s ruling that he did not allege that he had suffered any actual injury. “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correction facility, for mental or emotional injury while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). As Smith did not allege any physical injury stemming from his confinement in administrative segregation or in Camp J, the district court did not err in dismissing Smith’s claims that he was confined to a cell with inadequate sunlight and fresh air pursuant to Rule 12(b)(6). Smith maintains that he stated a valid claim that all of the defendants had conspired to retaliate against him. A conspiracy claim requires showings that an actual violation of § 1983 occurred and that the defendants agreed to commit an illegal act. See Hale v. Townley, 45 F.3d 914, 920 (5th Cir.1995); Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982). As no § 1983 violation was established, Smith’s claim of civil conspiracy was properly dismissed under Rule 12(b)(6). See Hale, 45 F.3d at 920. Finally, the district court determined that Smith’s claim relating to the filing of a July 2006 disciplinary report was prescribed and that his claim that Voorhies and Barrere destroyed his property in December 2007 failed because Smith had an adequate state remedy for that claim. Smith has abandoned any appeal of these issues by failing to challenge them in this court. See Yohey, 985 F.2d at 225; Brinkmann, 813 F.2d at 748. The judgment of the district court is, in all respects, AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "23248723", "title": "", "text": "raised by the petition “are so insubstantial as not to require further argument.” Singh v. Gonzales, No. 03-71681 (9th Cir. Feb.7, 2005). Singh’s third claim is that Lawyer 3 failed to effectively pursue an IAC claim against Lawyer 2. II. Singh’s Habeas Petition On May 18, 2005, Singh’s fourth and current attorney filed a habeas petition in the United States District Court for the Northern District of California, alleging unlawful detention in violation of his Fifth Amendment right to due process. The district court dismissed the action for lack of jurisdiction under the REAL ID Act. On appeal, Singh argues that the REAL ID Act did not deprive the district court of jurisdiction over his IAC claims. In the alternative, Singh argues that if the REAL ID Act eliminated habeas review over his claims, the Act violates the Suspension Clause and the equal protection and due process guarantees of the Fifth Amendment. Analysis I. Singh’s Claim Against Lawyer 1 Singh’s first IAC claim, which arose prior to his hearing before the IJ, is barred by his failure to exhaust administrative remedies, and we need not decide whether the REAL ID Act precludes ha-beas review of this claim. See 8 U.S.C. § 1252(d)(1). At the time Singh retained Lawyer 2 to represent him at the removal hearing, the facts surrounding the allegedly ineffective representation by Lawyer 1 were known to Singh. Thus, Singh should have raised this issue before the IJ or the BIA on direct review. His failure to do so constitutes a failure to exhaust administrative remedies and he may not raise this claim for the first time before a federal court. See Sun v. Ashcroft, 370 F.3d 932, 944 & n. 18 (9th Cir.2004) (holding that § 1252(d)(1) applies to alien habeas petitioners). Singh’s only response to this well-settled rule of exhaustion is that he cannot now satisfy the administrative exhaustion requirement because the only remedy that is now available to him with respect to his claim against Lawyer 1 is a motion to reopen, and such a motion is now time-barred and numerically-barred. This argument misses the" }, { "docid": "22630748", "title": "", "text": "available to the alien as of right.... ” Tani-guchi did not raise the issue of citizenship before the IJ in the initial removal proceedings, and she did not appeal the order of removal to the BIA. The matter before us, therefore, is not the order of removal by the IJ, because of the failure to appeal to the BIA. The matter before us is the motion to reopen. The IJ denied the motion to reopen on the grounds that it was untimely. A motion to reopen must be filed within 90 days of the final order to be timely. See 8 C.F.R. § 3.23(b)(1) (1999). The order of removal was issued on April 14, 1999 and the motion to reopen was filed on August 1, 1999, more than 90 days later. On August 9, 2000, the BIA affirmed the IJ’s denial of the motion to reopen as untimely for the reasons expressed by the IJ. In Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir.2001) (en banc), we held that 8 C.F.R. § 3.2 is subject to equitable tolling and reversed the BIA’s denial of a motion to reopen. In that case, however, we concluded that the administrative appeal to the BIA had been exhausted, because the BIA had addressed whether equitable considerations should toll the limitations period set forth in 8 C.F.R. § 3.2. Id. at 1186. In Taniguchi’s case, equitable tolling was not argued to the BIA nor discussed by the BIA; nor was equitable tolling argued to this court. Thus that issue was not exhausted and furthermore was waived by failure to present it to this court. B. Petition for Writ of Habeas Corpus 1. Citizenship The District Court correctly dismissed Taniguchi’s citizenship claim for lack of jurisdiction, as such claims must be brought in the court of appeals. This court has held that 8 U.S.C. § 1252(b)(5) does not foreclose completely the writ of habeas corpus. Magana-Pizano v. INS, 200 F.3d 603, 608 (9th Cir.1999). District courts retain jurisdiction under 28 U.S.C. § 2241 when the petitioner has no other remedy. Id. Here, though, § 1252(b)(5) provides" }, { "docid": "19656549", "title": "", "text": "renewed his TPS application, which USCIS denied on July 6, 2006. Bah did not appeal the decision to the AAO. Instead, on August 7, 2006, Bah petitioned the United States District Court for the District of Minnesota for writs of habeas corpus and mandamus to compel reinstatement of his TPS. The district court granted Bah’s writ of habeas corpus, and transferred his request for a writ of mandamus to this Court, pursuant to 28 U.S.C. § 1631. The district court noted Bah’s claims well might be proeedurally barred, but transferred them nonetheless. In the meantime, Bah appealed the Bureau of Immigration Appeals’ (“BIA[’s]”) dismissal of his appeal of an Immigration Judge’s (“IJ[’s]”) denial of his motion to reopen immigration proceedings. On August 9, 2006, we held the BIA erred in dismissing Bah’s appeal and remanded his case to the BIA. Bah v. Gonzales, 457 F.3d 838 (8th Cir.2006). The BIA vacated its earlier decision and remanded the case to the IJ so as to allow Bah to reapply for relief from removal. In re Bah, 2007 WL 1154014 (BIA Feb. 8, 2007). Since February 8, 2007, the date on which the BIA vacated its earlier decision, there has been no final order of removal of Bah by the BIA. After remand, Bah is currently in removal proceedings before an IJ. II “[T]his Court has jurisdiction to determine preliminary jurisdictional issues.” Vasquez-Velezmoro v. INS, 281 F.3d 693, 695 (8th Cir.2002). Under 8 U.S.C. § 1252(a)(1), we have jurisdiction to review final orders of removal. Ikenokwalu-White v. Gonzales, 495 F.3d 919, 925 (8th Cir.2007) (holding this Court only has jurisdiction where there is a final order of removal). Bah argues 8 U.S.C. § 1252(a)(2)(D) grants this Court jurisdiction over all constitutional claims and questions of law. We disagree. Although § 1252(a)(2)(D) does provide us with jurisdiction to review alleged constitutional violations or errors of law, it applies only to petitions for review of final orders of removal. Id. In other words, the exception for constitutional claims and questions of law is not a general grant of appellate court jurisdiction over all appeals;" }, { "docid": "2843175", "title": "", "text": "to have evidence tending to show, that the Government refused to file a motion for suspect reasons such as his race or his religion.” Id. The factual discrepancies between the two parties’ accounts do not entitle Brown to an evidentiary hearing. Brown would not be entitled to relief as a matter of law, because he has not alleged the Government’s failure to file the Rule 35(b) motion was the result of an unconstitutional motive. See supra Part III.B. We hold that the district court did not abuse its discretion because, as the district court correctly observed, even “[assuming arguendo that the Government did enter into a subsequent verbal agreement with the defendant, the Court could not compel the Government to file a [R]ule 35(b) motion under the circumstances here.” IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Although the Government sought to enforce the waiver in the district court, the Government does not seek to enforce it in this Court. Therefore, the waiver is not binding, and this Court may consider the instant appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir.2006) (\"In the absence of the government's objection to [the appellant’s] appeal based on his appeal waiver, the waiver is not binding because the government has waived the issue.”). . The record is unclear as to Brown's relationship with the woman who made the call. At some points, she is referred to as Brown’s wife, in others, as Brown’s girlfriend. . In its opposition to Brown’s original § 2255 motion, the Government also argued that Brown waived his right to appeal, see supra, and Brown's claim was not cognizable under § 2255. The Government has not pressed these issues on appeal, and so we do not consider them here. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir.2008) (\"It is a well worn principle that the" }, { "docid": "12575000", "title": "", "text": "BIA’s original removal order was reviewed and affirmed by this court and Padilla never presented the new issue of his vacated convictions to the BIA. Because the BIA has never been asked to determine the effect of the state court’s order on Padilla’s order of removal, there is no agency decision on this issue for us to review. Because the BIA could have reopened his case at any time and amended or rescinded its removal order, Padilla did not exhaust his administrative remedies, and we lack jui'isdiction to consider his arguments. Goonsuwan, 252 F.3d at 388. See also Panjwani, 401 F.3d at 632; Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir.2001) (alien failed to exhaust administrative remedies where, even though he filed an untimely motion to reopen, he did not specifically ask the BIA to exercise its authority to reopen his case sua sponte); Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999) (same). In light of the provisions of the REAL ID Act, we consider the district court’s habeas ruling a nullity and construe Padilla’s habeas appeal as a petition for review. We lack jurisdiction to consider Padilla’s argument about the effect of the state court’s vacatur order because he never presented it to the BIA. Accordingly, the petition for review is Dismissed. . 8 C.F.R. § 1003.2(c)(2) and (3)(iii) (alien musí, file motion to reopen within ninety days of the final administrative decision, but the ninety-day limitation is waived if all parties join in the motion). . 8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.”). .With inapplicable exceptions, the REAL ID Act stripped the district courts of jurisdiction to review removal orders, specifically including their jurisdiction to review habeas challenges to removal orders under 28 U.S.C. § 2241. 8 U.S.C. § 1252(a)(5). . The only other case Padilla cites on the exhaustion issue, Sewak v. INS, 900 F.2d 667 (3d Cir.1990), is inapplicable because it dealt with an alien who, unlike Padilla, raised his arguments with the BIA before" }, { "docid": "23306124", "title": "", "text": "aggravated felony; and (4) he was not prima facie eligible for naturalization because the aggravated felony conviction prohibited him from establishing that he has “good moral character.” In his appeal to the BIA, petitioner asserted three claims for relief. First, he asserted that the IJ erred in determining that petitioner was not a national of the United States. Second, he argued the government should be equitably estopped from removing him because of the gross delay in deciding earlier applications for removal. Third, he contended that the IJ erred in determining that petitioner was convicted of an aggravated felony. The BIA affirmed the IJ’s decision without opinion. Petitioner then filed a motion with the BIA to reconsider and reopen his case. He argued that the Board impermissibly issued an affirmance without opinion despite the fact that petitioner had raised an issue of law (that a violation of § 922(a)(3) was not an aggravated felony), and (2) that because petitioner had recently reapplied for naturalization, the BIA should set his case aside pending resolution of that application. The BIA denied the motion, concluding that petitioner “in his request for reconsideration, primarily reiterates the arguments raised on appeal regarding his removability as an aggravated felon.” The BIA noted that it would not hold the petition in abeyance pending resolution of his naturalization application because his aggravated felony conviction prohibited him from establishing prima facie eligibility for naturalization. In the proceeding before this Court, petitioner challenges only the findings that his § 922(a)(3) conviction constituted an aggravated felony and that he is not prima facie eligible for naturalization. Petitioner had also filed for habeas corpus relief in the District Court and that case was transferred to this Court pursuant to section 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231. We consolidated the cases. See Belito Garcia, 462 F.3d 287, 2006 WL 2529471, *2 (3d Cir. Sept.5, 2006). We have jurisdiction over the habeas corpus action as well as the petition for review. However, our review is limited to constitutional and legal questions. Id. As an initial matter, the" }, { "docid": "23034522", "title": "", "text": "ineffective assistance of counsel claim. In July 2003, the BIA affirmed the IJ’s denial of Gutierrez’s motion to reopen and dismissed Gutierrez’s appeal. B. Gutierrez’s First Set of Challenges to His Removal Order 1. Petition for Revieio In August 2003, Gutierrez made his first trip to this court, petitioning us to review the BIA’s July 2003 decision affirming the IJ’s denial of his motion to reopen. We affirmed the BIA’s decision in an unpublished opinion. Specifically, we determined that the IJ properly denied Gutierrez’s motion to reopen “because [Gutierrez] was informed of his right to apply for cancellation of removal, and he was provided an opportunity to do so. Thus, the [IJ] did not violate [Gutierrez’s] due process rights.” 2. Habeas Corpus Hedging his bets, Gutierrez filed a concurrent habeas petition in the Western District of Texas challenging his removal order. The district court denied Gutierrez’s habeas petition, ruling, inter alia, that (1) because § 240A relief is entirely discretionary, no interest in that relief is protected by the Due Process Clause; and, alternatively, (2) because Gutierrez had yet to comply with the BIA’s Lozada requirements, he could not present his ineffective assistance of counsel claim. Gutierrez did not appeal the district court’s denial of his first habeas petition to this court. C. Gutierrez’s Second Set of Parallel Challenges to His Removal Order Undeterred by his failure to obtain relief from removal, Gutierrez initiated a new round of challenges. After firing'his lawyer and employing new counsel, Gutierrez returned to the BIA on May 11, 2004, with a new motion to reopen. Gutierrez’s new motion urged the BIA to exercise its authority to reopen his removal proceedings sua sponte Gutierrez contended that his initial lawyer’s assistance had been constitutionally ineffective because he missed the deadline for filing Gutierrez’s application for waiver of removal. Notably, the record reflects that by the time Gutierrez filed this new motion to reopen, he had complied with Lozada’s procedural requirements. On September 1, 2004, the BIA denied Gutierrez’s motion to reopen. Specifically, the BIA held that Gutierrez’s case did not present the type of exceptional circumstances" }, { "docid": "6549228", "title": "", "text": "motion for an abuse of discretion. A motion to alter or amend under Rule 59(e) must clearly establish either a manifest error of law, present newly discovered evidence, or rely on an intervening change in controlling law. In denying Buck’s motion, the district court rejected any claims that it relied on Respondent’s alleged misrepresentations in reaching a decision. Instead, the district court stated its denial was based on the record and controlling law. Buck’s Rule 59(e) motion fails to cite a manifest error of law, present newly discovered evidence, nor does it rely on an intervening change in controlling law. Because we conclude that jurists of reason could not disagree with the district court’s resolution of Buck’s Rule 59(e) motion, we deny his COA. We treat Buck’s request for a COA on the issue of whether his due process and equal protection claims should be reconsidered as an application for permission to file a successive habeas petition, and that application is DENIED. We DENY Buck’s application for a COA as to his contention that reasonable jurists could debate the district court’s disposition of his motion to reconsider judgment. We DENY the request for a stay of execution. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Buck v. Thaler, 345 Fed.Appx. 923 (5th Cir.2009). . Buck v. Thaler, No. 72, 810 (Tex.Crim.App. Apr. 28, 1999). . Buck, 345 Fed.Appx. 923. . Id. . 545 U.S. 524, 530-31, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). .See id. at 530, 125 S.Ct. 2641. . 28 U.S.C. § 2244(b)(3)(A). . Id. § 2244(b)(2). . Id. § 2244(b)(2)(B)(i). . Id. § 2244(b)(2)(B)(ii) . 28 U.S.C. § 2244(a)-(b)(2). . Id. . Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. . 28 U.S.C. § 2253(c)(1). . 302 F.3d 491, 492 (5th Cir.2002). . Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir.2007); see also Williams v. Quarterman, 293 Fed.Appx. 298, 315 (5th Cir.2008). . Jackson v. Thaler, 348 Fed.Appx. 29," }, { "docid": "20533845", "title": "", "text": "27 L.Ed.2d 669 (1971). Younger abstention applies when three criteria are met: “(1) the dispute should involve an ‘ongoing state judicial proceeding;’ (2) the state must have an important interest in regulating the subject matter of the claim; and (3) there should be an ‘adequate opportunity in the state proceedings to raise constitutional challenges.’ ” Wightman v. Tex. Supreme Court, 84 F.3d 188, 189 (5th Cir.1996). Each of these criteria is met in this case. First, there is an ongoing state judicial proceeding. The matter was dismissed by the SOAH administrative law judge pursuant to Texas Administrative Code § 155.501(d) and Texas Government Code § 2001.056, which allow for a dismissal of an administrative proceeding on a default basis. The matter is then returned to the referring agency for informal disposition on a default basis in accordance with Texas Government Code § 2001.056. The PAB has not yet taken up Mr. Perez’s matter and his disciplinary proceeding is still pending there. The Supreme Court has expanded the Younger doctrine to encompass state administrative proceedings. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Second, as the district court noted, the State of Texas has a strong interest in protecting the public through the regulation and oversight of those practicing medicine in the state. See Tex. Occ.Code § 151.003 (“[T]he practice of medicine is a privilege and not a natural right of individuals and as a matter of public policy it is necessary to protect the public interest through enactment of this subtitle.”). Third, Appellants can raise constitutional challenges in the state courts. Texas law provides for judicial review of the administrative decision in the state courts. Tex. Gov’t Code. § 200.171. The Younger abstention therefore applies. We AFFIRM the district court. Appel-lees’ Motion to Dismiss Appeal as Frivolous is MOOT. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." } ]

[ { "docid": "22549225", "title": "", "text": "the prisoner shall not be taken from him arbitrarily or without the right to be heard according to the usual course of law in such cases. We of course agree that if a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course bf justice, there is, in that court, a departure from due process of law in the proper sense of that term. And if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment-based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law. But the State may supply such corrective process as to it seems proper. Georgia has adopted the familiar procedure of a motion for a new trial followed by an appeal to its Supreme Court, not confined to the mere record of conviction but going at large, and upon evidence adduced outside of that record, into the question whether the processes of justice have been interfered with in the trial court. Repeated instances are reported of verdicts and judgments set aside and new trials granted for disorder or mob violence interfering with thé prisoner’s right to a fair trial. Myers v. State, 97 Georgia 76 (5), 99; Collier v. State, 115 Georgia, 803. Such an appeal was accorded to the prisoner in the present case [Frank v. State, 141 Georgia, 243 (16), 280], in a manner and under, circumstances already stated, and the Supreme Court, upon a full review, decided appellant’s allegations of fact, so far as matters now material are concerned, to be unfounded. Owing to considerations already adverted to (arising not out of comity merely, but out of the very right of the matter to be decided, in view of the relations existing between the States and the Federal Government), we hold that such a determination of the facts as was thus made by the court of last resort of Georgia respecting the alleged interference" } ]

[ { "docid": "23215750", "title": "", "text": "expenditure of sorely pressed federal judicial resources and exacerbate possible friction between the federal and stape judiciary, is antithetical to the very factors which motivated the Stone majority to sharply limit the role of the federal court in Fourth Amendment state habeas procedures. This very case illustrates the conceptual basis for Stone. Gates was convicted of murder, presumably on the basis of the finger and palmprints found at the scene of the crime. Any illegality surrounding his arrest would not render the evidence any less genuine or damning. The state court provided every opportunity for him to have raised the issue. He was vigorously represented by counsel who pressed constitutional issues to the taking of the prints but never to the legality of his arrest. Gates has never raised any issue as to the competence of his counsel. He was afforded full appellate review and further coram nobis procedure. No attack is mounted on the state procedure requiring that the Fourth Amendment issue be raised at trial. The Fourth Amendment objection was raised for the first time in the Court of Appeals as his then counsel conceded. To permit a hearing now eleven years later, after memories have long since dimmed, to determine what cause the police had at that time to make an arrest would be neither just to society nor effectuate the rationale of the exclusionary rule — police deterrence. The Supreme Court in Stone held that under these circumstances federal intrusion is unwarranted. If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. United States ex rel. Petillo v. New Jersey, 4Í8 F.Supp. 686 (D.N.J. 1976) rev’d 562 F.2d 903 (3rd Cir. 1977). It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted. See Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76" }, { "docid": "16221082", "title": "", "text": "the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process. Id. at 840; see McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir.1983). Capellán does not contend that New York failed to provide a corrective procedure to redress his alleged fourth amendment claim. Instead, he asserts that an unconscionable breakdown occurred in the existing process in violation of his constitutional rights. Although our decision in Gates did not fully expand on precisely when an unconscionable breakdown has occurred, citations within Gates to Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), and to Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963) [hereinafter “Ba-tor”], illustrate the sort of “disruption or obstruction of a state proceeding” typifying an unconscionable breakdown. Shaw v. Scully, 654 F.Supp. 859, 864 (S.D.N.Y. 1987); see Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y.), aff'd, 852 F.2d 59 (2d Cir.1988) (per curiam). In Frank, the Supreme Court, decades ago, affirmed the denial of a petition for a writ of habeas corpus despite the petitioner’s contention that his murder trial was dominated by an angry mob. See 237 U.S. at 324, 345, 35 S.Ct. at 586, 594. The Court stated that if the trial judge yielded to mob intimidation of the jury, due process would have been violated. Id. at 335, 35 S.Ct. at 590. However, it stated that since Georgia, the forum state, had provided adequate procedures to remedy alleged due process violations, due process had not been denied, and collateral review was unwarranted. Id. at 335-36, 35 S.Ct. at 590. Similarly, in his habeas article written years later, Professor Bator discussed, inter alia, when federal habeas corpus review of state court decisions was justifiable. He observed that if the state had furnished no process, or if the process furnished was “claimed to be meaningless [because] the totality of state procedures allegedly did not provide rational conditions for inquiry into federal-law ... questions,” collateral review by" }, { "docid": "7926585", "title": "", "text": "v. Scully, 781 F.2d 291, 297 (2d Cir.1986); McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir.1983); Nelson v. Smith, 618 F.Supp. 1186, 1191 (S.D.N.Y.1985). The focus of Stone v. Powell is the word “opportunity.” If the state provides no procedure for defendants to redress Fourth Amendment violations, federal habeas corpus remains available. If, however, the state by enacting a statutory mechanism for the suppression of evidence obtained by unlawful search and seizure, has provided an opportunity fully and fairly to litigate Fourth Amendment issues, the federal courts may not reexamine those issues on habeas corpus review. McPhail v. Warden, Attica Correctional Facility, supra, 707 F.2d at 69. When the state provides a facially adequate procedure, a petitioner cannot gain review of a Fourth Amendment claim simply by arguing that the federal court would have reached a different result. Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.1977), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978) (en banc); Foran v. Metz, 463 F.Supp. 1088, 1992-93 (S.D.N.Y.) aff'd, 603 F.2d 212, (2d Cir.), cert. denied, 444 U.S. 830, 100 S.Ct. 58, 62 L.Ed.2d 38 (1979) (federal court may not characterize erroneous outcome of state court procedure as “unfair” in order to reach Fourth Amendment claim) United States ex rel. Carbone v. Manson, 447 F.Supp. 611, 616 (D.Conn.1978) (no authority to hear Fourth Amendment claim despite petitioner’s contentions that Connecticut Supreme Court applied incorrect standard of review, improperly deferred to trial court, and did an about face on its original holding inasmuch as claim had been litigated twice in the trial court and twice on appeal). Rather, to gain federal review, petitioner must demonstrate an unconscionable breakdown in the otherwise adequate process. Gates v. Henderson, supra, 568 F.Supp. at 840; Allah v. LeFevre, 623 F.Supp. 987, 990-91 (S.D.N.Y.1985). New York provides criminal defendants an opportunity to litigate Fourth Amendment search and seizure issues before trial. See N.Y. Crim. Proc. Law § 710. In light of New York’s procedure, then, federal scrutiny of Shaw’s Fourth Amendment claims is not warranted unless he demonstrates that he was" }, { "docid": "16221083", "title": "", "text": "curiam). In Frank, the Supreme Court, decades ago, affirmed the denial of a petition for a writ of habeas corpus despite the petitioner’s contention that his murder trial was dominated by an angry mob. See 237 U.S. at 324, 345, 35 S.Ct. at 586, 594. The Court stated that if the trial judge yielded to mob intimidation of the jury, due process would have been violated. Id. at 335, 35 S.Ct. at 590. However, it stated that since Georgia, the forum state, had provided adequate procedures to remedy alleged due process violations, due process had not been denied, and collateral review was unwarranted. Id. at 335-36, 35 S.Ct. at 590. Similarly, in his habeas article written years later, Professor Bator discussed, inter alia, when federal habeas corpus review of state court decisions was justifiable. He observed that if the state had furnished no process, or if the process furnished was “claimed to be meaningless [because] the totality of state procedures allegedly did not provide rational conditions for inquiry into federal-law ... questions,” collateral review by a federal court would be appropriate. Bator, supra, at 456-57. However, he noted that, even under these circumstances, if the state courts had a corrective appellate or collateral procedure that fairly determined that constitutional violations did not occur, federal collateral review was unnecessary. See id. at 457-58 n. 28. The district court herein placed great reliance upon Gamble v. Oklahoma, 583 F.2d 1161 (10th Cir.1978), a case described by the court as involving circumstances identical to those in the case at hand— namely, that during the pendency of Gamble’s appeal, the Supreme Court had handed down a decision that directly applied to his circumstances. See Capellan, 779 F.Supp. at 733. In Gamble, when Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) — a newly-decided relevant decision — was brought to the attention of the state court, the court not only ignored it, but actually rested its decision on the reasoning “flatly condemned by the United States Supreme Court[’s]” ruling. Gamble, 583 F.2d at 1163. The Tenth Circuit determined, therefore, that" }, { "docid": "16221089", "title": "", "text": "state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim.” Coleman v. Thompson, — U.S.-, 111 S.Ct. 2546, 2559, 115 L.Ed.2d 640 (1991). To reiterate, to the extent that Capellán claims that the Appellate Division erred in its ruling in light of Olson, this would not give us authority to review his claims since a mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state’s corrective process. CONCLUSION Clearly there was a corrective procedure herein by which Capellán could seek to redress his fourth amendment claim. And, just as clearly, there was no unconscionable breakdown in that procedure. We vacate the district court’s judgment and remand the cause to the district court with instructions to dismiss the petition. . Indeed, the “federal courts have approved New York’s procedure for litigating Fourth Amendment claims, embodied in N.Y.Crim.Proc.Law § 710.10 et seq. (McKinney 1984 & Supp.1988), as being facially adequate.” Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y.1989); see Gates, 568 F.2d at 837 & n. 4; Shaw v. Scully, 654 F.Supp. 859, 864 (S.D.N.Y.1987)." }, { "docid": "15967737", "title": "", "text": "3046. Thus, this court has “no authority” to grant the writ of habeas corpus simply because it may disagree with the result of a state court on a Fourth Amendment question. Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed. 2d 787 (1978); Foran v. Metz, 463 F.Supp. 1088, 1092-93 (S.D.N.Y.), aff'd, 603 F.2d 212 (2d Cir)., cert. denied, 444 U.S. 830, 100 S.Ct. 58, 62 L.Ed.2d 38 (1979) (federal court may not characterize erroneous outcome of state court procedure as “unfair” in order to reach a Fourth Amendment claim). Before this court can reach petitioner’s Fourth Amendment claim, it must first find that the state has not provided an opportunity for full and fair litigation of the claim. The focus of the inquiry is necessarily on the word “opportunity.” McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir.1983); Shaw v. Scully, 654 F.Supp. 859, 863 (S.D.N.Y.1987). Where the state has provided an opportunity fully and fairly to litigate Fourth Amendment claims by enacting a statutory mechanism for the suppression of evidence obtained by unlawful search and seizure, the federal courts may not re-examine those issues on habeas corpus review. McPhail v. Warden, Attica Correctional Facility, 707 F.2d at 69. In this case, N.Y.Crim.Proc.Law Article 710 clearly provided Cappiello with the opportunity to move for the suppression of evidence prior to trial. Id. Indeed, Cappiello availed himself of this procedure in seeking to suppress his inculpatory statements on Fifth Amendment grounds. Thus, Cappiello does not — and indeed could not — argue that New York failed to provide him with even the “opportunity” to move for the suppression of evidence based on a Fourth Amendment claim. Instead, he complains that there was an “unconscionable breakdown” in the otherwise adequate state process. Gates v. Henderson, 568 F.2d at 840 (where state provides a process to redress constitutional deprivations, but defendant precluded from using it because of an unconscionable breakdown in that process, federal habeas review may be warranted). Specifically, Cappiello argues that it was such a" }, { "docid": "16221081", "title": "", "text": "require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 481-82, 96 S.Ct. at 3046 (emphasis added). In the wake of Powell, this Circuit has developed a litmus test to discern when a state prisoner has been denied an opportunity for full and fair litigation of his fourth amendment claims. See Gates v. Henderson, 568 F.2d 830 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). Gates noted that “all that the [Supreme] Court required was that the state [ ] provide[ ] the opportunity to the state prisoner for a full and fair litigation of the Fourth Amendment claim_” Id. at 839 (emphasis in original). We concluded that review of fourth amendment claims in habeas petitions would be undertaken in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process. Id. at 840; see McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir.1983). Capellán does not contend that New York failed to provide a corrective procedure to redress his alleged fourth amendment claim. Instead, he asserts that an unconscionable breakdown occurred in the existing process in violation of his constitutional rights. Although our decision in Gates did not fully expand on precisely when an unconscionable breakdown has occurred, citations within Gates to Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), and to Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963) [hereinafter “Ba-tor”], illustrate the sort of “disruption or obstruction of a state proceeding” typifying an unconscionable breakdown. Shaw v. Scully, 654 F.Supp. 859, 864 (S.D.N.Y. 1987); see Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y.), aff'd, 852 F.2d 59 (2d Cir.1988) (per" }, { "docid": "15967741", "title": "", "text": "in Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), wherein, over the dissents of Justices Holmes and Hughes, the Supreme Court refused to grant a writ of habeas corpus to a petitioner convicted of murder in a state trial claimed to have been dominated by an angry mob. It also cited to a law review article, Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 456-57 (1963) in which situations such as the bribing of a trial judge, the government’s knowing use of perjured testimony, or the use of torture to extract a guilty plea, all without opportunity to obtain state review, are cited as circumstances justifying habeas inquiry. See Allah v. LeFevre, 623 F.Supp. 987, 991 (S.D.N.Y.1985). In short an unconscionable breakdown in the state’s process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society. In this case, the most of which petitioner can complain is that the first Appellate Division panel, having reached the merits of his Fourth Amendment claim — although it may not have been obliged to do so given his failure to raise it below — purportedly ruled incorrectly, thereby depriving him of a second chance to make the sort of trial record which, because of his failure to make it at his initial opportunity, deprived him of the retroactive applicability of Dun-away. As already noted, it is not for this court to review the correctness of the first Appel late Division panel’s determination on the merits of Cappiello's Fourth Amendment claim. Gates v. Henderson, 568 F.2d at 840. Moreover, the court cannot say that it is an “unconscionable breakdown” of the state’s process that a litigant, who fails to raise a claim when he is initially given an opportunity for full and fair review, is not afforded a second chance to attack the same evidence on a different legal theory. Nor is such a breakdown evidenced by a failure to afford such" }, { "docid": "15967740", "title": "", "text": "suppressed. The Appellate Division panel that considered Cappiello’s first conviction, and his more plainly articulated Fourth Amendment claim, did not discuss whether this claim of unlawful arrest had or had not been presented to the trial court. It simply found all the arguments as to suppression to be “without merit” and refused to order a new hearing. The Appellate Division panel that considered Cappiello’s second conviction expressly found that the Fourth Amendment claim had not been presented to the trial court at the suppression hearing. For this reason, it refused to apply Dunaway retroactively. People v. Cappiello, 85 A.D.2d at 608, 444 N.Y.S.2d at 682. In this context, the “breakdown”, of which petitioner complains is that the first Appellate Division panel erred in refusing to order a new hearing on his Fourth Amendment claim and that, as a result, the second Appellate Division panel erred in not applying Dunaway to his case. This is not the sort of “breakdown” referred to in Gates. Rather, the Court of Appeals there cited as an example the circumstances in Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), wherein, over the dissents of Justices Holmes and Hughes, the Supreme Court refused to grant a writ of habeas corpus to a petitioner convicted of murder in a state trial claimed to have been dominated by an angry mob. It also cited to a law review article, Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 456-57 (1963) in which situations such as the bribing of a trial judge, the government’s knowing use of perjured testimony, or the use of torture to extract a guilty plea, all without opportunity to obtain state review, are cited as circumstances justifying habeas inquiry. See Allah v. LeFevre, 623 F.Supp. 987, 991 (S.D.N.Y.1985). In short an unconscionable breakdown in the state’s process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society. In this case, the most of which" }, { "docid": "7926587", "title": "", "text": "in fact precluded from utilizing it by an unconscionable breakdown in the review process. Neither Gates nor subsequent decisions within the Second Circuit has greatly elaborated the standard of unconscionable breakdown. The citation within Gates to Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915) (Holmes, J. and Hughes, J., dissenting), a case in which the Supreme Court refused to grant a writ of habeas corpus to a petitioner convicted of murder in a state court proceeding alleged to have been dominated by an angry mob, does point out the degree of disruption or obstruction of a state proceeding required before a federal court may hear a Fourth Amendment claim despite the availability of a facially adequate state procedure. In Cruz v. Alexander, 477 F.Supp. 516 (S.D.N.Y 1979), Judge Sweet found such a breakdown when, through a series of mischances, neither the New York Supreme Court at trial nor the New York Court of Appeals on review ever addressed the merits of the Fourth Amendment claims petitioner had tried to assert throughout. Judge Sweet distinguished this instance, where petitioner could prove that no state court had conducted a “reasoned method of inquiry into relevant questions of fact and law,” or any inquiry at all, from other Second Circuit cases that precluded review because petitioner had had available and had taken advantage of an opportunity for full and fair litigation. Id. at 523. In this case, Shaw availed himself of the procedure to attack the legality of his arrest under Payton v. New York, supra, at a pretrial suppression hearing under section 710 of New York’s Criminal Procedure Law, see Omnibus Hearing Transcript at 35, 52, 57-61, 109-112, 151, 187A-192, 200-216 (Grey, Justice) (“Tr.”), on direct appeal, see Petitioner’s Brief to the Appellate Division at 4, 9-15, and in his motion to vacate the sentence. In further submissions to the Court dated May 27, 1986 and July 30, 1986, petitioner nonetheless urges the Court to disregard the doctrine of Stone v. Powell since the lack of effective trial or appellate counsel deprived him of a full and" }, { "docid": "19709129", "title": "", "text": "due process clause of the fourteenth amendment. The court denied leave to file a petition for a writ of habeas corpus, however, because of the petitioner’s failure to exhaust state remedies. Frank, supra, was an appeal from a denial of a petition for the writ of habeas corpus. The appellant, convicted of murder, alleged that he had been denied a fair and impartial trial because, among other reasons, “disorder in and about the courtroom during the trial and up to and at the reception of the verdict resulted in mob domination.” 237 U.S. at 324, 35 S.Ct. at 586. The Court stated, “[I]f a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of the term.” Id. at 335, 35 S.Ct. at 590. The court affirmed the denial of the writ of habeas corpus, however, on the basis of the state supreme court’s determination that the alleged disorder had consisted only of two minor irregularities which did not prejudice the accused. Moore v. Dempsey, supra, similarly came before the Court on appeal from a dismissal of a habeas corpus petition. The appellants, five black men, had been convicted of murdering a white man and had been sentenced to death. They claimed that they had been denied due process because their trial had been dominated by a mob; their appointed counsel had not consulted with them before trial, failed to challenge the jury, called no witnesses, and did not put the defendants on the stand; and the entire trial had lasted only 45 minutes, with the jury verdict coming five minutes later. The Court, following Frank, held that “if the case is that the whole proceeding is a mask—that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong,” due process would have been violated." }, { "docid": "3268906", "title": "", "text": "all defendants with a “facially adequate procedure” for litigating Fourth Amendment claims, and that no “unconscionable breakdown” of that procedure occurred in the petitioner’s specific case. McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir.1983); Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978); Shaw v. Scully, 654 F.Supp. 859, 863-64 (S.D.N.Y.1987). An “unconscionable breakdown” of the procedure is proven where petitioner demonstrates that “no state court ... conducted a ‘reasoned method of inquiry into relevant questions of fact and law,’ or any inquiry at all” into the Fourth Amendment claim. Id., 654 F.Supp. at 864, quoting Cruz v. Alexander, 477 F.Supp. 516, 523 (S.D.N.Y.1979). The federal courts have approved New York’s procedure for litigating Fourth Amendment claims, embodied in N.Y.Crim.Proc.Law § 710.10 et seq. (McKinney 1984 & Supp.1988), as being facially adequate. Gates, 568 F.2d at 837 & n. 4; Shaw, 654 F.Supp. at 864. Therefore, “federal scrutiny of [Holmes’] Fourth Amendment claim[ ] is not warranted unless he demonstrates that he was in fact precluded from utilizing [the state procedure] by an unconscionable breakdown in the [state’s] review process.” Shaw, 654 F.Supp. at 864. Here there was no “unconscionable breakdown” in the process provided by N.Y.Crim.Proc.Law § 710.10 et seq. (McKinney 1984 & Supp.1988). Petitioner availed himself of that process, and his motion to suppress was denied in a written opinion dated December 20, 1982 (reproduced in State’s Br. at 11-16) which leaves no doubt that the trial court “conducted a ‘reasoned method of inquiry into relevant questions of fact and law,’ ” Shaw, 654 F.Supp. at 864. Therefore, to the extent that it is based on the Fourth Amendment, petitioner’s second claim must be denied, with prejudice. 2) To the extent that petitioner’s second claim rests on alleged violations of the Fifth Amendment, it must be rejected because it is procedurally barred. At best, petitioner only has a Fifth Amendment claim as to the statements he made on the morning of September 18, 1981, but not as to the blood" }, { "docid": "15967736", "title": "", "text": "Eastern District of New York, from whom it was here transferred. Petitioner asserts that he has adequately exhausted state remedies for all his claims. The state, in opposition to the petition, does not contest this point. Upon review of the record the court finds that petitioner has exhausted his state remedies regarding all of his constitutional claims. DISCUSSION I. Fourth Amendment Claim In considering Cappiello’s claim that his inculpatory statements to the authorities should have been suppressed as the “fruit” of an unlawful arrest, the court is mindful that in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court erected a substantial barrier to federal habeas review of Fourth Amendment claims: [W]here the state has provided an opportunity for full and fair litigation of the Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Id. 428 U.S. at 481-82, 96 S.Ct. at 3046. Thus, this court has “no authority” to grant the writ of habeas corpus simply because it may disagree with the result of a state court on a Fourth Amendment question. Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed. 2d 787 (1978); Foran v. Metz, 463 F.Supp. 1088, 1092-93 (S.D.N.Y.), aff'd, 603 F.2d 212 (2d Cir)., cert. denied, 444 U.S. 830, 100 S.Ct. 58, 62 L.Ed.2d 38 (1979) (federal court may not characterize erroneous outcome of state court procedure as “unfair” in order to reach a Fourth Amendment claim). Before this court can reach petitioner’s Fourth Amendment claim, it must first find that the state has not provided an opportunity for full and fair litigation of the claim. The focus of the inquiry is necessarily on the word “opportunity.” McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir.1983); Shaw v. Scully, 654 F.Supp. 859, 863 (S.D.N.Y.1987). Where the state has provided an opportunity fully and fairly to litigate Fourth" }, { "docid": "16221085", "title": "", "text": "Powell did not bar federal review of Gamble’s fourth amendment claim because “the state court wilfully refus[ed] to apply the correct and controlling constitutional standards.” Gamble, 583 F.2d at 1165. The Gamble court stated that the “ ‘[opportunity for full and fair consideration’ ... [was] not limited to[ ] the procedural opportunity to raise or otherwise present a Fourth Amendment claim_ [I]t contemplate^] recognition and at least colorable application of the correct Fourth Amendment constitutional standards.” Id. The district court herein understood the Gamble court’s interpretation of Powell as permitting “habeas review of Fourth Amendment claims when the state courts’ decisions have prevented a petitioner’s legitimate efforts to litigate Fourth Amendment claims.” Capellan, 779 F.Supp. at 733 (emphasis added). As we have stated previously, however, this Court has interpreted Powell as requiring only that the state courts provide an opportunity for full and fair litigation of a fourth amendment claim, see Gates, 568 F.2d at 839, unless, of course, the petitioner can demonstrate that the state failed to provide a corrective process, or can point to an “unconscionable breakdown” in that corrective process. Id. at 840. Even if Capellán were correct in his allegation that the Appellate Division erroneously decided this issue, a petitioner cannot gain federal review of a fourth amendment claim simply because the federal court may have reached a different result. See id. Indeed, if we were to read Powell as requiring us to focus on the correctness of the outcome resulting from the application of adequate state court corrective procedures, rather than on the existence and application of the corrective procedures themselves, we would be assuming, implicitly at least, that state courts were not responsible forums in which to bring constitutional claims such as is presented herein. Yet, Powell expressly discourages us from making any such assumption. See 428 U.S. at 493-94 n. 35, 96 S.Ct. at 3052 n. 35 (“we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States”). Moreover, the mere fact that the Appellate Division" }, { "docid": "3268905", "title": "", "text": "petitioner’s right to assistance of counsel. Pet.Br. at 7. Petitioner asserts that the trial court erred by refusing to suppress the items of evidence obtained by the state during this period of unlawful detention — consisting of certain oral statements to the police (which petitioner fails to specifically identify), the blood sample, and the lineup identification. 1) To the extent that the claim is premised upon failure to suppress evidence obtained due to the “illegal and unlawful detention” of petitioner, this court cannot consider it. The United States Supreme Court held in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) that a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial, unless the state denied that prisoner “an opportunity for full and fair litigation” of that claim. Id., 428 U.S. at 494, 96 S.Ct. at 3052. In this circuit, “an opportunity for full and fair litigation” means that the state has provided all defendants with a “facially adequate procedure” for litigating Fourth Amendment claims, and that no “unconscionable breakdown” of that procedure occurred in the petitioner’s specific case. McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir.1983); Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978); Shaw v. Scully, 654 F.Supp. 859, 863-64 (S.D.N.Y.1987). An “unconscionable breakdown” of the procedure is proven where petitioner demonstrates that “no state court ... conducted a ‘reasoned method of inquiry into relevant questions of fact and law,’ or any inquiry at all” into the Fourth Amendment claim. Id., 654 F.Supp. at 864, quoting Cruz v. Alexander, 477 F.Supp. 516, 523 (S.D.N.Y.1979). The federal courts have approved New York’s procedure for litigating Fourth Amendment claims, embodied in N.Y.Crim.Proc.Law § 710.10 et seq. (McKinney 1984 & Supp.1988), as being facially adequate. Gates, 568 F.2d at 837 & n. 4; Shaw, 654 F.Supp. at 864. Therefore, “federal scrutiny of [Holmes’] Fourth Amendment claim[ ] is not warranted" }, { "docid": "7926586", "title": "", "text": "F.2d 212, (2d Cir.), cert. denied, 444 U.S. 830, 100 S.Ct. 58, 62 L.Ed.2d 38 (1979) (federal court may not characterize erroneous outcome of state court procedure as “unfair” in order to reach Fourth Amendment claim) United States ex rel. Carbone v. Manson, 447 F.Supp. 611, 616 (D.Conn.1978) (no authority to hear Fourth Amendment claim despite petitioner’s contentions that Connecticut Supreme Court applied incorrect standard of review, improperly deferred to trial court, and did an about face on its original holding inasmuch as claim had been litigated twice in the trial court and twice on appeal). Rather, to gain federal review, petitioner must demonstrate an unconscionable breakdown in the otherwise adequate process. Gates v. Henderson, supra, 568 F.Supp. at 840; Allah v. LeFevre, 623 F.Supp. 987, 990-91 (S.D.N.Y.1985). New York provides criminal defendants an opportunity to litigate Fourth Amendment search and seizure issues before trial. See N.Y. Crim. Proc. Law § 710. In light of New York’s procedure, then, federal scrutiny of Shaw’s Fourth Amendment claims is not warranted unless he demonstrates that he was in fact precluded from utilizing it by an unconscionable breakdown in the review process. Neither Gates nor subsequent decisions within the Second Circuit has greatly elaborated the standard of unconscionable breakdown. The citation within Gates to Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915) (Holmes, J. and Hughes, J., dissenting), a case in which the Supreme Court refused to grant a writ of habeas corpus to a petitioner convicted of murder in a state court proceeding alleged to have been dominated by an angry mob, does point out the degree of disruption or obstruction of a state proceeding required before a federal court may hear a Fourth Amendment claim despite the availability of a facially adequate state procedure. In Cruz v. Alexander, 477 F.Supp. 516 (S.D.N.Y 1979), Judge Sweet found such a breakdown when, through a series of mischances, neither the New York Supreme Court at trial nor the New York Court of Appeals on review ever addressed the merits of the Fourth Amendment claims petitioner had tried to assert" }, { "docid": "23215751", "title": "", "text": "first time in the Court of Appeals as his then counsel conceded. To permit a hearing now eleven years later, after memories have long since dimmed, to determine what cause the police had at that time to make an arrest would be neither just to society nor effectuate the rationale of the exclusionary rule — police deterrence. The Supreme Court in Stone held that under these circumstances federal intrusion is unwarranted. If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. United States ex rel. Petillo v. New Jersey, 4Í8 F.Supp. 686 (D.N.J. 1976) rev’d 562 F.2d 903 (3rd Cir. 1977). It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted. See Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 456-57 (1963). But that is not this case. Stone v. Powell, supra, holds that we have no authority to review the state record and grant the writ simply because we disagree with the result reached by the state courts. The basic inquiry is whether the state prisoner was given the opportunity for full apd fair litigation of his Fourth Amendment claim. We find that Gates was given that opportunity and hence we affirm the district court dismissal of his petition for habeas relief. OAKES, Circuit Judge, with whom Judges J. JOSEPH SMITH and FEINBERG concur (concurring in the result): Two developments in the period since the panel decision was filed lead me to change my vote from one of reversal to one of affirmance. First, additional facts not mentioned in the State’s brief to the panel or in its petition for rehearing and presented for the first time in conjunction with its en banc brief make it clear that appellant’s trial-level objection to the admission of palmprint evidence was not based on the" }, { "docid": "16221086", "title": "", "text": "to an “unconscionable breakdown” in that corrective process. Id. at 840. Even if Capellán were correct in his allegation that the Appellate Division erroneously decided this issue, a petitioner cannot gain federal review of a fourth amendment claim simply because the federal court may have reached a different result. See id. Indeed, if we were to read Powell as requiring us to focus on the correctness of the outcome resulting from the application of adequate state court corrective procedures, rather than on the existence and application of the corrective procedures themselves, we would be assuming, implicitly at least, that state courts were not responsible forums in which to bring constitutional claims such as is presented herein. Yet, Powell expressly discourages us from making any such assumption. See 428 U.S. at 493-94 n. 35, 96 S.Ct. at 3052 n. 35 (“we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States”). Moreover, the mere fact that the Appellate Division adhered to its original outcome without comment concerning Olson does not mean that the Appellate Division failed to conduct “ ‘a reasoned method of inquiry into relevant questions of fact and law.’ ” Shaw, 654 F.Supp. at 864 (citation omitted); see Bator, supra, at 455-57. Yet, the district court reaches this very conclusion and points to Tukes v. Dugger, 911 F.2d 508 (11th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991) and Agee v. White, 809 F.2d 1487 (11th Cir.1987) — two cases in which federal habeas corpus review was granted, in part, because the state appellate courts did not state the rationales employed in denying fourth amendment claims — as further support that Capellán was denied the opportunity for full and fair litigation of his fourth amendment claim in light of Olson. See Capellan, 779 F.Supp. at 733-34; see also Tukes, 911 F.2d at 514 (federal collateral review was not barred by Powell because the state appellate court issued a summary affirmance of trial court’s denial of fourth amendment" }, { "docid": "19709128", "title": "", "text": "as a means of depriving a defendant of liberty through a deliberate deception of court and jury.” Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935) (per curiam). In addition to Mooney, plaintiff cites Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1914), Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923), and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), in support of her argument. Mooney, supra, was decided while the Hauptmann trial was in progress. The petitioner in Mooney, convicted of murder and sentenced to life imprisonment, sought leave to file a petition for habeas corpus relief in the Supreme Court. He charged that his confinement violated the due process clause because he had been convicted solely on the basis of perjured testimony (knowingly used by the prosecutor) and because the prosecutor deliberately suppressed exculpatory evidence. The Supreme Court held that, if the petitioner’s allegations were true, his conviction and imprisonment would violate the due process clause of the fourteenth amendment. The court denied leave to file a petition for a writ of habeas corpus, however, because of the petitioner’s failure to exhaust state remedies. Frank, supra, was an appeal from a denial of a petition for the writ of habeas corpus. The appellant, convicted of murder, alleged that he had been denied a fair and impartial trial because, among other reasons, “disorder in and about the courtroom during the trial and up to and at the reception of the verdict resulted in mob domination.” 237 U.S. at 324, 35 S.Ct. at 586. The Court stated, “[I]f a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of the term.” Id. at 335, 35 S.Ct. at 590. The court affirmed the denial of the writ of habeas corpus, however, on" }, { "docid": "6643008", "title": "", "text": "S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also Salcedo v. Smith, No. 05 Civ. 3497, 2006 WL 1644700, at *3 (S.D.N.Y. June 13, 2006). Collateral review of a Fourth Amendment claim in a habeas petition is only appropriate where (1) the state provides no corrective procedures at all to redress Fourth Amendment violations, or (2) where the state provides such proce dures but the petitioner was precluded from using them “because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.1977) (en banc)); McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 70 (2d Cir.1983); see also Wicks v. Miller, No. 05 Civ. 5341, 2007 WL 1434992, at *7 (S.D.N.Y. May, 15, 2007). The Second Circuit Court of Appeals has approved of New York’s procedure for litigating Fourth Amendment claims, as embodied in New York Criminal Procedure Law § 710.10 et seq., see Capellan, 975 F.2d at 70 n. 1, and the petitioner took advantage of this procedure by filing a motion to suppress evidence. The petitioner’s motion resulted in a pretrial hearing on the issue and a conclusion by the hearing court that there was probable cause for the petitioner’s arrest. Moreover, the petitioner raised his Fourth Amendment claim on direct appeal, and the Appellate Division rejected it. The petitioner has shown no “unconscionable breakdown” in this procedure, and therefore review of his Fourth Amendment claim is barred. 3. The petitioner next argues that he was entitled to an independent source hearing to determine whether Officer Stone’s identification of him should have been excluded at trial. The petitioner’s argument, however, is without merit. An independent source hearing is necessary only when a hearing court has determined that pre-trial identification procedures were unduly suggestive. See United States v. DiTommaso, 817 F.2d 201, 213 (2d Cir.1987); United States v. Archibald, 734 F.2d 938, 941 (2d Cir.1984); Gossett v. Henderson, No. 87 Civ. 5878, 1991 WL 135601, at *4 (S.D.N.Y. July 18, 1991) (“[S]ince the lineup procedure was not suggestive, an independent source is not" } ]

[ { "docid": "7480079", "title": "", "text": "him $89 million.” Id., at 51. The Government did not, at any time, allege that Skilling solicited or accepted side payments from a third party in exchange for making these misrepresentations. See Record 41328 (May 11, 2006 Letter from the Government to the District Court) (“[T]he indictment does not allege, and the government’s evidence did not show, that [Skilling] engaged in bribery.”). It is therefore clear that, as we read § 1346, Skilling did not commit honest-services fraud. Because the indictment alleged three objects of the conspiracy — honest-services wire fraud, money-or-property wire fraud, and securities fraud — Skilling’s conviction is flawed. See Yates v. United States, 354 U. S. 298 (1957) (constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory). This determination, however, does not necessarily require reversal of the conspiracy conviction; we recently confirmed, in Hedgpeth v. Pulido, 555 U. S. 57 (2008) (per curiam), that errors of the Yates variety are subject to harmless-error analysis. The parties vigorously dispute whether the error was harmless. Compare Brief for United States 52 (“[A]ny juror who voted for conviction based on [the honest-services theory] also would have found [Skilling] guilty of conspiring to commit securities fraud.”) with Reply Brief 30 (The Government “cannot show that the conspiracy conviction rested only on the securities-fraud theory, rather than the distinct, legally-flawed honest-services theory.”). We leave this dispute for resolution on remand. Whether potential reversal on the conspiracy count touches any of Skilling’s other convictions is also an open question. All of his convictions, Skilling contends, hinged on the conspiracy count and, like dominoes, must fall if it falls. The District Court, deciding Skilling’s motion for bail pending appeal, found this argument dubious, App. 1141a-1142a, but the Fifth Circuit had no occasion to rule on it. That court may do so on remand. * * * For the foregoing reasons, we affirm the Fifth Circuit’s ruling on Skilling’s fair-trial argument, vacate its ruling on his conspiracy conviction, and remand the case for proceedings consistent with this" } ]

[ { "docid": "22881591", "title": "", "text": "The Verdict On May 10, 2005, the reconstituted jury returned its verdict. Kemp was convicted of conspiracy, seven counts of wire fraud, 11 counts of mail fraud, one count of attempted extortion, one count of extortion, two counts of making false statements to a bank, and four counts of filing a false income tax return; Hawkins was convicted of one count of wire fraud and three counts of perjury; Hoick and Umbrell were convicted of conspiracy and two counts of wire fraud; and Knight was convicted of two counts of making false statements to the FBI. The jury also acquitted the defendants or was unable to reach a verdict on a number of charges. Ultimately, the District Court sentenced Kemp to 120 months’ imprisonment, Hoick to 28 months’ imprisonment, Umbrell to 27 months’ imprisonment, Hawkins to 33 months’ imprisonment, and Knight to 5.5 months’ imprisonment. All five defendants then filed timely appeals. II. We have jurisdiction of an appeal from a judgment of conviction pursuant to 28 U.S.C. § 1291. III. The appellants challenge their convictions on many grounds. Kemp argues that the government failed to present sufficient evidence to support his convictions for mail fraud relating to his asset-locator business. Hoick and Umbrell challenge them wire fraud convictions by arguing that the indictment failed to state an offense, the District Court erroneously instructed the jury, and the government presented insufficient evidence to sustain the convictions. Hoick and Umbrell also argue that their conspiracy convictions must be vacated because there was a prejudicial variance between the crime charged in the indictment and the evidence adduced at trial. Hawkins claims that the government presented insufficient evidence to support his convictions for wire fraud and perjury, that the District Court’s jury instructions on wire fraud omitted an essential element, and that the Court wrongly admitted several forms of unfairly prejudicial evidence. Finally, all appellants contend that the District Court erred by individually questioning the jurors upon receiving complaints of juror misconduct and then discharging Juror 11. We consider each of these sundry claims in turn. A. Kemp’s Mail Fraud Convictions Kemp claims" }, { "docid": "6041758", "title": "", "text": "(ruling that Skilling did not disturb honest services wire fraud conviction that rested on kickback scheme). But see United States v. Wright, 665 F.3d 560, 570-72 (3d Cir.2012) (vacating honest services wire fraud conviction where verdict encompassed both bribery theory and defective conflict-of-interest theory). 3. Turning specifically to this case, the jury’s guilty verdict on Counts 3 and 4 — the two substantive bribery offenses— demonstrates beyond a reasonable doubt that Jefferson was guilty under the valid bribery theory underlying Counts 1, 6, 7, 10, and 16, and that the Skilling error in the jury instructions was necessarily harmless. See Neder, 527 U.S. at 15, 18, 119 S.Ct. 1827. By convicting Jefferson of those bribery offenses (Counts 3 and 4), the jury necessarily found that Jefferson had committed the bribery object of the Count 1 conspiracy charge, since — as described in both the indictment and the instructions — the bribery object was coextensive with the bribery conduct charged in Counts 3 and 4. The foregoing analysis also applies to the Count 16 RICO conviction, in that two of the racketeering acts that the jury found proven were identical to the bribery acts underlying Counts 3 and 4. In this regard, the jury was provided with a verdict form that required it to specify the alleged racketeering acts it found Jefferson had committed. The jury was also provided with Court Exhibit 5, which identified the twelve alleged racketeering acts, eleven of which identified the two alternative theories of liability: bribery of a public official (prong “a”) and deprivation of honest services by wire fraud (prong “b”). Two of the racketeering acts that the verdict found as proven were identical to the bribery offenses in Counts 3 and 4. Finally, racketeering act 12, which the jury also found as proven, described monetary transactions in nine separate racketeering acts, including three that corresponded to the money laundering counts (Counts 12-14) on which Jefferson was also convicted. Notably, the verdict on racketeering act 12 is not challenged on appeal. Nor does Skilling provide Jefferson with any basis for relief as to Counts 6," }, { "docid": "20605385", "title": "", "text": "asserts that he often worked in excess of 40 hours per week and was never paid overtime on those weeks. Individual Defendant John Coniglio has an ownership interest in JUI. (Coniglio Decl. ¶ 3). Coniglio testified that he did not have any operational control over the day-to-day ditch digging performed by the corporate Defendant. (Coniglio Decl. ¶ 13). Coniglio testified that he went to the work sites on a “very infrequent” basis, but Plaintiff testified that he saw Coniglio at the work site once a week. (Coniglio Dep. 37); (Zarate Dep. 32). Coniglio testified that it was not his role to fire people, although he had the power to do so. (Coniglio Dep. 34, 53). Coniglio testified that his co-owner set the pay rates and the schedule, but the co-owner discussed the pay rates with him and he had the power to object to them. (Coniglio Dep. 52-53). II. Preliminary Matters On April 6, 2009, Magistrate Judge Lynch denied Plaintiffs motion to compel, requesting further information in answer to interrogatories (D.E. No. 15). The same day, Plaintiff filed an objection to Magistrate Judge Lynch’s denial. (D.E. No. 16). This objection was incorrectly docketed as a “Memorandum of Law,” which prevented it from coming to the Court’s attention in a timely manner (D.E. No. 16). A review of the motion to compel (D.E. No. 12), however, shows no error on Judge Lynch’s part. Magistrate Judge Lynch determined in his Order that Plaintiffs Requests for Admissions and Interrogatories were worded in such a way as to inappropriately “in some fashion, define what is or is not ‘enterprise coverage’ ” and that Defendants responded adequately and reasonably “in light of the questions as worded.” (D.E. No. 15). An examination of the Motion to Compel reveals the source of Judge Lynch’s concerns. Plaintiffs Requests for Admissions asked Defendants to admit that JUI employed “two or more individuals who, in performing their job duties, handled or worked on goods [or materials] that were produced for commerce.” Defendants denied this. To admit it would have been tantamount to admitting enterprise coverage, as discussed infra Sec. IV." }, { "docid": "12303800", "title": "", "text": "OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION This matter comes on before this Court on an appeal from a final judgment of conviction and sentence entered against appellant Barry Sussman (“Sussman”) on October 8, 2009. The government initiated this criminal case on May 12, 2008, when it filed a complaint against Sussman in the District Court. The charges stemmed from an underlying civil action in which the Federal Trade Commission (“FTC”) secured a judgment against Sussman and his co-defendants in the amount of $10,204,445, as well as equitable relief by reason of their abusive debt collection activities. On December 9, 2008, a grand jury in the District of New Jersey returned a two-count indictment against Sussman in these criminal proceedings. After a five-day trial in May 2009 the jury found him guilty on one count of theft of government property, in violation of 18 U.S.C. § 641, and one count of obstruction of justice, in violation of 18 U.S.C. § 1503(a). On October 5, 2009, the District Court sentenced Sussman to an imprisonment term of 41 months on each count, to be served concurrently, followed by three years of supervised release. The Court also imposed a $15,000 fine and a $200 special assessment. The Court entered a judgment of conviction and sentence reflecting the sentence it imposed on October 8, 2009. On October 15, 2009, Sussman filed a timely notice of appeal. He now challenges the jury’s verdict on insufficiency of the evidence grounds. In an alternative argument Sussman contends that he should be afforded a new trial because a portion of the trial transcript is unavailable, apparently because a court reporter lost the transcript. He also contends that the District Court erred in admitting redacted documents from the FTC’s prior civil case against him into evidence. Finally, he argues that the District Court improperly instructed the jury on the elements of Count Two, obstruction of justice, and failed to include his proposed “theory of defense” instruction in its jury charge. For the reasons discussed below, we will affirm. II. BACKGROUND On May 12, 2008, the FTC brought" }, { "docid": "10899392", "title": "", "text": "letter, that she was angry with Davis at the time she wrote it. After he rested his case, Davis moved for judgment of acquittal on all three counts of the superseding indictment. The district court denied the motion. As to Count One — possession of a firearm after having been convicted of a felony — the court pointed out that the parties had stipulated that Davis was a convicted felon on the date in question. The court explained that: (1) “at best, there is some conflicting evidence” regarding whether Davis “knowingly possessed the firearm, either actual possession or constructive possession;” ánd (2) “when there is conflicting evidence, the issue belongs to the trier of fact.” On Count Two — witness tampering — the district court found that a jury could reasonably conclude that Davis attempted to corruptly persuade D.D. based on the audiotape of Davis’s conversation with her. On Count Three — obstruction of justice — the district court stated that, based on that conversation, a reasonable juror could conclude that “Davis knowingly and corruptly tried to influence, obstruct, or impede the due administration of justice in the judicial proceeding.” The court thus denied Davis’s motion, finding that the evidence was sufficient to sustain a conviction on each of the counts of the indictment. 3. Jury Verdict and Sentencing After a three-day trial, the jury found Davis guilty on all three charges. The district court entered judgment on July 2, 2015. The court subsequently sentenced Davis to 121 months imprisonment, which was at the low-end of the sentencing guidelines. Defense counsel indicated that Davis had no objections to that sentence. Davis now appeals his obstruction of justice and witness tampering convictions. Although there is some debate about whether Davis’s notice of appeal was timely, the government does not raise timeliness as a reason not to review the case. The parties agree that we have jurisdiction over Davis’s appeal under 28 U.S.C. § 1291. See United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009) (“Because the deadline in Rule 4(b) for filing a notice of appeal in a criminal" }, { "docid": "19831687", "title": "", "text": "of cheeks in payment for those claims (Counts 12-22). The six money laundering charges, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), are for the cash withdrawals of the Medicaid payments (Counts 34-39). On April 10, 2009, a jury found Dvorak guilty on all thirty-nine counts. The court sentenced him to 37 months for the mail fraud and money laundering charges to run concurrently, and 24 months for the identity theft charges, with two of those charges to run consecutively to the 37 month mail fraud/money laundering sentence, for a total of 85 months. Dvorak filed a timely appeal. II. On appeal, Dvorak raises three issues. First, he argues that the evidence does not support his conviction for money laundering because the act of withdrawing cash from his checking account demonstrates no intent to conceal the proceeds of his illegal activity. Second, he argues that the jury instructions given on the aggravated identity theft charges were flawed because they failed to include an element of the offense that the Supreme Court has since held must be proven beyond a reasonable doubt. Finally, Dvorak contends that the district court erred in making the sentences for two of his aggravated identity theft convictions run consecutively because the court failed to consider factors set forth in the Sentencing Guidelines. We consider each argument in turn. A. Dvorak first argues that his convictions for money laundering are not supported by sufficient evidence. “This court reviews the sufficiency of the evidence supporting a conviction de novo, viewing the evidence most favorably to the verdict, resolving conflicts in favor of the verdict, and giving it the benefit of all reasonable inferences.” United States v. Spencer, 592 F.3d 866, 876 (8th Cir.2010). The “verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” Id. (quotations omitted). Dvorak was convicted under the provision of the money laundering statute that makes it a crime for a defendant to conduct, or attempt to conduct, a financial transaction that involves the proceeds of a specified" }, { "docid": "17067147", "title": "", "text": "a seventeen-day trial in January and February 2012, a jury found Edgardo guilty on Counts One through Seven and Astrid guilty on all five counts against her. Edgardo was acquitted of the fraudulent transfer alleged in Count Eight. The district court sentenced Edgardo to sixty months’ imprisonment on each of Counts One through Six and seventy-two months’ imprisonment on Count Seven, the money-laundering crime, all to be served concurrently. The court sentenced Astrid to a term of thirty-six months. The district court granted Astrid’s request for release on bail pending appeal so that she could care for her ailing mother, conditioned on her mother’s continuing need for help. Edgardo began serving his term in May 2013. On appeal, appellants challenge both their convictions and sentences, each asserting multiple claims of error. They insist that the evidence was insufficient to support their convictions on some or all counts, and their common claims also in-elude an objection to the district court’s sixteen-level increase in their base offense levels under the sentencing guidelines. Edgardo includes among his claims a contention that the Partial Settlement Agreement, which brought Málaga # 1 into his bankruptcy estate, constituted a waiver by the government of all charges based on conduct that was cured by his corrective actions. Astrid includes among her claims a contention that the district court abused its discretion by denying her motion in limine to exclude prejudicial evidence relating to her own bankruptcy proceedings in 2000. We address these arguments in turn, identifying in each instance whether the challenge is brought by Edgardo, Astrid, or both siblings. II. Edgardo: Government Waiver Edgardo asserts that the Partial Settlement Agreement in his bankruptcy case effected a waiver by the government of the fraud, concealment, and money laundering charges lodged against him and, hence, entitled him to a judgment of acquittal on all counts. He frames this argument in terms of estoppel: the government is es-topped from charging him criminally for concealing his ownership of Málaga # 1 and IU and failing to disclose the transactions associated with them, because the trustee and bankruptcy court accepted the" }, { "docid": "1804979", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: In 2015, the United States Government indicted Sheldon Silver, the former Speaker of the New York -State Assembly, on charges of honest services fraud, Hobbs Act extortion, and money laundering. The Government alleged that Silver abused his public position by engaging in two quid pro quo schemes in which he performed official acts -in exchange for bribes and kickbacks, and that he laundered the proceeds of his schemes into private investment vehicles. After a jury trial of nearly one month in the United States District Court for the Southern District of New York (Valerie E. Caproni,. Judge), a jury found him guilty on all counts. He was sentenced to twelve years of imprisonment, to be followed by three years of supervised release. After Silver had been convicted and sentenced, the Supreme Court issued its decision in McDonnell v. United States, which clarified the definition of an “official act” in honest services fraud and extortion charges. The Supreme Court, vacating the conviction of former Governor Robert McDonnell of Virginia, held that “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy’ ” involving “a formal exercise of governmental power.” Silver now appeals from his judgment of conviction and argues, primarily, that the District Court’s jury instructions defining an official act as “any action taken or to be taken under color of official authority” was erroneous under McDonnell. He additionally challenges the sufficiency of the evidence on all counts of conviction, arguing, among other things, that his money laundering conviction under 18 U.S.C. § 1957 required the Government to trace “dirty” funds comingled with “clean” funds. Though we reject Silver’s sufficiency challenges, we hold that the District Court’s instructions on honest services fraud and extortion do not comport with McDonnell and are therefore in error. We further hold that this error was not harmless because it is not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed, as is required by law for a verdict to stand. Accordingly, we VACATE the" }, { "docid": "11438636", "title": "", "text": "bank fraud, in violation of 18 U.S.C. § 1344; and three counts of misapplication of bank funds, in violation of 18 U.S.C. § 657. On March 4, 1997, within seven days after the jury’s verdict, Defendant filed a motion for judgment of acquittal and a motion for new trial. On August 8, 1997, the district court issued an order granting Defendant’s motion for judgment of acquittal on the conspiracy count and denying the motion as to the five substantive counts. Specifically, the court found that there was insufficient evidence to convict Henning on the conspiracy charge. On December 10, 1997, Henning filed a “Motion to Consider Further Motion For New Trial Based Upon Court’s Order Dated August 8, 1997.” On June 12, 1998, the court granted this motion, vacating Defendant’s conviction on the substantive counts and granting a new trial. The court found that, in light of its submission of a Pinkerton instruction to the jury, it should have vacated the substantive convictions when it reversed the conspiracy conviction in the August 8 order. The Government appealed the June 12 vacation of the substantive counts, and we reversed, finding that the district court was without jurisdiction to hear Henning’s “Motion to Consider Further Motion.” United States v. Henning, No. 98-3748, 1999 WL 1073687 (6th Cir.1999). The case was then remanded for sentencing. On April 17, 2000, Henning was fined $25,000 and sentenced to four months imprisonment, to be followed by two years supervised release. This appeal followed. Henning asserts that a new trial on the substantive counts is necessary because, in hindsight, the jury was incorrectly charged with the Pinkerton instruction. Specifically, Henning contends that insofar as (1) the jury rendered a general verdict finding him guilty of conspiracy and of certain substantive offenses and (2) he was acquitted of the conspiracy conviction in a post-trial order, the substantive convictions must be vacated because it is impossible to know whether the jury convicted him legally (based upon his own acts) or illegally (based upon the acts of others). The Government disagrees, arguing that the submission of the Pinkerton charge was" }, { "docid": "23380171", "title": "", "text": "for several months. The record discloses that the trial judge promptly admonished the jury to disregard and completely erase the remark from their minds. There is no basis for reversal. United States v. Stromberg, 268 F.2d 256, 269 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959). In his “Reply and Supplemental Brief” appellant Altamura urges that the trial judge committed “plain error” in failing to charge the jury on the law and facts in regard to his alibi defense. Having failed to either request such a charge or to make a timely objection in accord with Fed.R.Crim.P. 30, Altamura cannot complain now. Goldsby v. United States, 160 U.S. 70, 77, 16 S.Ct. 216, 40 L.Ed. 343 (1895); Lewis v. United States, 373 F.2d 576, 579 (9th Cir.), cert. denied, 389 U.S. 880, 88 S.Ct. 116, 19 L.Ed.2d 173 (1967); United States v. Tramaglino, supra, 197 F.2d at 932. Appellants Mele and Coniglio complain that unique circumstances prevented the latter from testifying at the trial. In June 1971 Coniglio was convicted after a jury trial in the Eastern District of New York, of violating the narcotics laws. On June 15, 1972, this court reversed that conviction because the prosecution had suppressed certain relevant evidence. United States v. Mele, 462 F.2d 918 (2d Cir. 1972). Thus the argument is that had Coniglio testified in the instant April-May, 1972 trial, he would have been subjected to damaging cross-examination about his prior narcotics conviction, a conviction eventually overturned because of prosecutorial misconduct. The fallacy lies in the fact that Coniglio possessed, and failed to exercise, the right to request a prior ruling from the trial judge on whether the earlier conviction could be used on cross-examination. See, e. g., United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969). Having neglected to make such an application below, the appellants are now in no position to urge that Coniglio was unfairly prevented from testifying. Levis Nedd, along with some of the other defendants, complains that his in-court" }, { "docid": "16372193", "title": "", "text": "July 1, 1975, contained no request for jury trial. On August 29, 1975, Coniglio and Locke each filed an answer to the complaint, a motion for summary judgment, and a counterclaim against Mesa and its vice president, Gaines L. Godfrey, which basically alleged a cause of action in the nature of libel and slander. Demand for jury trial was made only with respect to the two counts contained in the counterclaims. Mesa filed a motion to dismiss the counterclaims on September 18, 1975. In an order dated February 26,1976, the district court dismissed the complaint, reserving a decision on Mesa’s motion to dismiss the counterclaims. Mesa filed an amended complaint on March 26,1976. The appellants answered, again failing to demand a jury trial. The counterclaims were dismissed without prejudice on April 15, 1977. Thus, at this juncture, aside from the two counts for libel and slander asserted in the counterclaims, the appellants had served no timely demand for jury trial as required by Fed.R.Civ.P. 38(b). The failure to make such demand constitutes a waiver under Fed.R.Civ.P. 38(d). On the same day the counterclaims were dismissed, the court sent notices of trial to all attorneys of record indicating that the matter would be tried by a jury on September 6, 1977. The trial was subsequently rescheduled for a date in October of that year. At a pretrial conference held on September 13, 1977, the appellants’ attorneys were advised by the court that the case would not be tried by jury. Two days later, Coniglio and Locke filed a motion for jury trial pursuant to Fed.R.Civ.P. 39(b). The district court denied this motion on September 19, 1977. The appellants maintain that their failure to serve timely demand pursuant to Rule 38(b) was attributable to the complexity of the pleadings and the confusion caused by the April 15th order which purported to set the case for trial by jury. However, Mesa stresses that the counterclaims, the only pleadings containing demands for jury trial, were dismissed without prejudice on the same date. Therefore, it stands to reason that if Coniglio and Locke had exercised" }, { "docid": "6041757", "title": "", "text": "acquitted the defendants of pecuniary fraud on this count but convicted them of honest-services fraud.” Id. at 393. In so ruling, the Seventh Circuit also relied on the fact that the evidence and closing arguments had focused on the pecuniary fraud theory. Id. Similarly, in Ryan v. United States, an Illinois district court upheld several convictions, including racketeering and mail fraud, in the face of a Skilling challenge, finding that the facts underlying the invalid conflict-of-interest honest services wire fraud theory would nevertheless have supported convictions under a bribery honest services wire fraud theory. See 759 F.Supp.2d 975, 991-93 (N.D.Ill.2010); see also United States v. Wilkes, 662 F.3d 524, 544 (9th Cir.2011) (affirming honest services wire fraud conviction where jury was instructed on both bribery and self-dealing theories, and conviction of substantive bribery offense “confirm[ed] beyond any reasonable doubt that the jury would have convicted [defendant] of honest services fraud if the court’s definition had been limited to the bribery basis that Skilling expressly approved”); United States v. Cantrell, 617 F.3d 919, 921 (7th Cir.2010) (ruling that Skilling did not disturb honest services wire fraud conviction that rested on kickback scheme). But see United States v. Wright, 665 F.3d 560, 570-72 (3d Cir.2012) (vacating honest services wire fraud conviction where verdict encompassed both bribery theory and defective conflict-of-interest theory). 3. Turning specifically to this case, the jury’s guilty verdict on Counts 3 and 4 — the two substantive bribery offenses— demonstrates beyond a reasonable doubt that Jefferson was guilty under the valid bribery theory underlying Counts 1, 6, 7, 10, and 16, and that the Skilling error in the jury instructions was necessarily harmless. See Neder, 527 U.S. at 15, 18, 119 S.Ct. 1827. By convicting Jefferson of those bribery offenses (Counts 3 and 4), the jury necessarily found that Jefferson had committed the bribery object of the Count 1 conspiracy charge, since — as described in both the indictment and the instructions — the bribery object was coextensive with the bribery conduct charged in Counts 3 and 4. The foregoing analysis also applies to the Count 16 RICO conviction," }, { "docid": "15026108", "title": "", "text": "factors. In considering these factors, it primarily focused on Hornsby’s conduct with respect to honest-services fraud. Indeed, the district court did not conduct any separate analysis regarding the appropriateness of the seventy-two month sentences for witness and evidence tampering and obstruction of justice. Instead, the court stated its rationale for imposing the seventy-two month sentences for the honest-services fraud convictions, and then, without further explanation, imposed the same sentences for all tampering and obstruction convictions to run concurrently. As a result, the record is insufficient for us to assess the reasonableness of the tampering and obstruction sentences separate from the now-reversed honest-services fraud convictions. See United States v. Carter, 564 F.3d 325, 328 (4th Cir.2009) (stating that “[p]roeedural errors include ... failing to consider the § 3553(a) factors ... or failing to adequately explain the chosen sentence.... ”). Faced with the tampering and obstruction convictions only, the district court may determine that the seventy-two month sentences are inappropriate. This possibility is not unlikely given that the district court sentenced Hornsby below the recommended range for all convictions because it found that the range did not reflect the circumstances of Hornsby’s crimes and criminal history. Because we cannot conclude that, “it was reasonably certain that the judge would have imposed the same sentences even if the [erroneous] charge of honest-services fraud had not been submitted to the jury,” we vacate the sentences and remand to the district court for re-sentencing. Black, 625 F.3d at 389, 393-94 (reversing the honest-services fraud convictions based on a conflict of interest and remanding the case for re-sentencing on the remaining convictions); Riley, 621 F.3d at 339 (same); United States v. Coniglio, 417 Fed.Appx. 146, 151 (3d Cir.2011) (same). III. For the foregoing reasons, we reverse the convictions of honest-services fraud (counts 6, 7, and 10), and affirm the convictions of evidence and witness tampering (counts 19 and 20) and obstruction of justice (count 22). We vacate the sentences and remand the case for re-sentencing of counts 19, 20, and 22. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED . Because we reverse" }, { "docid": "15026109", "title": "", "text": "all convictions because it found that the range did not reflect the circumstances of Hornsby’s crimes and criminal history. Because we cannot conclude that, “it was reasonably certain that the judge would have imposed the same sentences even if the [erroneous] charge of honest-services fraud had not been submitted to the jury,” we vacate the sentences and remand to the district court for re-sentencing. Black, 625 F.3d at 389, 393-94 (reversing the honest-services fraud convictions based on a conflict of interest and remanding the case for re-sentencing on the remaining convictions); Riley, 621 F.3d at 339 (same); United States v. Coniglio, 417 Fed.Appx. 146, 151 (3d Cir.2011) (same). III. For the foregoing reasons, we reverse the convictions of honest-services fraud (counts 6, 7, and 10), and affirm the convictions of evidence and witness tampering (counts 19 and 20) and obstruction of justice (count 22). We vacate the sentences and remand the case for re-sentencing of counts 19, 20, and 22. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED . Because we reverse the honest-services fraud convictions based on the district court's erroneous jury instruction, we need not consider Hornsby's alternative basis for their reversal: that the district court erred when it barred the admission of certain portions of Hornsby’s statements that he argues are relevant to whether he engaged in a scheme to defraud. Appellant Br. at 20-37. . The second contract involved PGCS hiring a company, E-Rate Managers, to provide technical services to complete the public school system's application process for the E-Rate program. The E-Rate program is a federally subsidized program that provides discounts to schools on their telecommunications, internet access, and computer networking. The Government presented evidence that Hornsby owned E-Rate Managers and expected to receive part of the profit made from the E-Rate contract. Hornsby was not convicted on any count supported by allegations arising from this contract. . We find unpersuasive the Government’s argument that Hornsby did not adequately raise the ground for his objection to the jury instruction because his motion for judgment of acquittal was based, in part, on United" }, { "docid": "1804997", "title": "", "text": "the District Court sentenced Silver to twelve years of imprisonment, to be followed by three years of supervised release. It also imposed $5.4 million in forfeiture, and a $1.75 million fíne. The court entered its final judgment on May 10,2016. On May 13, 2016, Silver moved to continue bail and stay the financial penalties pending appeal. Silver relied largely on arguments raised in McDonnell, which was then pending before the Supreme Court and would address the definition of an. “official act” for honest services fraud and Hobbs Act extortion violations. On June 27,.2016, the Supreme Court decided McDonnell. Soon thereafter, on August 25, 2016, the District Court granted Silver’s motion. for bail pending appeal. In a thoughtful opinion, the District Court concluded that while Silver’s case is “factually almost nothing like McDonnelll,] ... there is a substantial question whether, in light of McDonnell, the [jury], charge was in error and, if so, whether the error was harmless.” , DISCUSSION On appeal, in addition to various arguments challenging the sufficiency of the evidence against him, Silver primarily argues that the District Court’s jury instructions on the definition of an “official act” in its honest service fraud and extortion charges were erroneous under McDonnell. He thus contends that we should vacate and remand the honest services fraud and extortion counts against him for a new trial. Silver also argues that if we vacate those counts, we necessarily must vacate the money laundering count against him. I. Sufficiency of the Evidence “We review de novo challenges to the sufficiency of evidence, but must uphold the conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” To conduct this review, “we view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the government’s favor, and deferring to the jury’s assessment of witness credibility and. its assessment of the weight of the evidence.” Silver raises three challenges to the sufficiency of the evidence against him, none of which have merit. - A. Hobbs Act Extortion" }, { "docid": "6995918", "title": "", "text": "of bribery. The charges arose from a Federal Bureau of Investigation (“FBI”) “sting” operation to uncover unlawful corruption by certain members of the California legislature and their staffs. The jury trial commenced on December 4, 1989. On January 17, 1990, after the close of the Government’s case-in-chief, the district court granted Montoya’s Fed. R.Crim.P. 29 motion for judgment of acquittal as to the two bribery charges, Counts III and XII. On February 2, 1990, the jury returned verdicts of guilty on the racketeering, money laundering, and five of the extortion counts, and verdicts of not guilty on three remaining extortion charges, Counts V, X, and XI. On May 8, 1990, Montoya was sentenced under the Federal Sentencing Guidelines to 78 months imprisonment on Counts I, II, and IV, and 78 months imprisonment on Counts VI, VII, and VIII, to be served concurrently. Montoya was also sentenced to a three-year term of supervised release, and, as to Count IX, a three-year term of probation to be served concurrently with the term of supervised release. Finally, Montoya was fined $32,000, and ordered to pay restitution in the amount of $8,000. Montoya appeals all of these convictions. II. DISCUSSION A. Hobbs Act Convictions (Counts II, VI, VII, VIII, IX) We first consider Montoya’s challenges to his five convictions under the Hobbs Act, 18 U.S.C. § 1951. Montoya argues that the standards for evaluating whether conduct is sufficient to meet the required “inducement” element of the offense of extortion under color of official right are ambiguous and, under the rule of lenity, should therefore be resolved in his favor. Montoya further contends that the district court’s jury instructions were improper, and that there was insufficient evidence to sustain the conviction under Count II. Finally, Montoya contends that his conviction for attempted extortion under Count II is invalid because the Government failed to show the required effect on interstate commerce. We reverse Montoya’s five extortion convictions on the ground that the jury was erroneously instructed on an essential element of a Hobbs Act extortion offense as subsequently interpreted by the Supreme Court in McCormick. Although" }, { "docid": "11438637", "title": "", "text": "Government appealed the June 12 vacation of the substantive counts, and we reversed, finding that the district court was without jurisdiction to hear Henning’s “Motion to Consider Further Motion.” United States v. Henning, No. 98-3748, 1999 WL 1073687 (6th Cir.1999). The case was then remanded for sentencing. On April 17, 2000, Henning was fined $25,000 and sentenced to four months imprisonment, to be followed by two years supervised release. This appeal followed. Henning asserts that a new trial on the substantive counts is necessary because, in hindsight, the jury was incorrectly charged with the Pinkerton instruction. Specifically, Henning contends that insofar as (1) the jury rendered a general verdict finding him guilty of conspiracy and of certain substantive offenses and (2) he was acquitted of the conspiracy conviction in a post-trial order, the substantive convictions must be vacated because it is impossible to know whether the jury convicted him legally (based upon his own acts) or illegally (based upon the acts of others). The Government disagrees, arguing that the submission of the Pinkerton charge was not erroneous because there was sufficient evidence to support that Henning was a member of the conspiracy to defraud First Federal. Alternatively, the Government argues that the error, if any, was not plain because the sufficiency question was a close one, that Henning was not prejudiced by the alleged error because the jury clearly would have convicted him of the substantive charges in the absence of the Pinkerton instruction, and that giving the Pinkerton instruction did not constitute a miscarriage of justice. II. Standard When a criminal defendant has failed to object below, he must demonstrate that the error was plain as defined by Federal Rule of Criminal Procedure 52(b) before the court may exercise jurisdiction to correct the error. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998). Federal Rule of Criminal Procedure 52(b) provides that “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Id. The Pink erton issue was not timely raised by the parties or the trial court." }, { "docid": "16372192", "title": "", "text": "§ 3 — 408 of the Uniform Commercial Code, as adopted by Florida, Fla.Stat. § 673.3-408, and Texas, Tex.Bus. & Comm. Code § 3.408, a note given in satisfaction of an antecedent obligation is enforceable. In this instance, the notes of Coniglio and Locke satisfied their prior promise to pay their shares of Diamond T’s existing and projected losses. In return for this promise, Mesa agreed to, and did in fact, pay off the joint venture’s obligations, thereby relieving Coniglio and Locke of their individual liabilities as guarantors of the promissory note previously executed in favor of the Bank. Although Mesa asserts several other grounds to support its entitlement to judgment on the promissory notes, we need not look beyond these basic facts to conclude that the notes are valid and enforceable. We next consider the appellants’ claim that the district court abused its discretion in refusing to grant a jury trial. At this point, it is necessary to trace the events leading to the denial of the appellants’ motion. Mesa’s original complaint, filed on July 1, 1975, contained no request for jury trial. On August 29, 1975, Coniglio and Locke each filed an answer to the complaint, a motion for summary judgment, and a counterclaim against Mesa and its vice president, Gaines L. Godfrey, which basically alleged a cause of action in the nature of libel and slander. Demand for jury trial was made only with respect to the two counts contained in the counterclaims. Mesa filed a motion to dismiss the counterclaims on September 18, 1975. In an order dated February 26,1976, the district court dismissed the complaint, reserving a decision on Mesa’s motion to dismiss the counterclaims. Mesa filed an amended complaint on March 26,1976. The appellants answered, again failing to demand a jury trial. The counterclaims were dismissed without prejudice on April 15, 1977. Thus, at this juncture, aside from the two counts for libel and slander asserted in the counterclaims, the appellants had served no timely demand for jury trial as required by Fed.R.Civ.P. 38(b). The failure to make such demand constitutes a waiver under" }, { "docid": "14176312", "title": "", "text": "1) was vacated in response to a posttri J motion as hereinafter described. Vebeliunas also appeals from an order entered December 16, 1994 in the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, that denied Vebeliunas’ post-trial motion pursuant to 28 U.S.C. § 455 to vacate the judgment of conviction. Vebeliunas was sentenced to thirty-six months imprisonment on each count, to run concurrently, followed by three years of supervised release. Judge Amon also imposed restitution in the amount of $581,194, a $60,-000 fine, and special assessments totalling $800. Vebeliunas contends on appeal that: (1) the district court’s jury instructions on the conflict of interest counts improperly amended the indictment, and also allowed him to be convicted on the basis of conduct that was not criminal; (2) counts 7-14 were barred by the applicable statute of limitations; (3) the government’s failure to call as witnesses the borrowers with respect to the loans at issue on counts 2-4,11,14,16-17, 22, 25, and 27-28 violated his rights under the Confrontation Clause of the Sixth Amendment; (4) the district court r^-ed by allowing the government to request the jury to draw inculpatory inferences from its own witnesses’ exculpato ry statements, thereby undermining the convictions on counts 32^40; (5) the evidence presented to the jury regarding the RICO count that was later dismissed created prejudicial spillover as to all of the remaining counts, requiring the reversal of his convictions on all counts; (6) his motion to vacate the judgment based upon 28 U.S.C. § 455 should have been granted because of an appearance of partiality by Judge Amon; (7) he was denied the effective assistance of counsel by his counsel’s failure to interview fifteen potential witnesses; (8) the bank fraud convictions are multiplicitous; and (9) there was insufficient evidence to support his conviction on any count because there was no evidence that he misled Kasa. We affirm the judgment of conviction and the denial of Vebeliunas’ posttrial recusal motion. Background In view of the guilty verdicts that the jury rendered on almost all of the counts submitted to it," }, { "docid": "4833935", "title": "", "text": "and 2 (Counts Two through Five), one count of program fraud, in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2 (Count Six), one count of fraudulent claims upon the Government of the Virgin Islands, in violation of 14 V.I.C. § 843(4) (Count Seven), and one count of inducing a conflict of interest, in violation of 3 V.I.C. §§ 1102, 1103, and 1107 (Count Eight). Harris pled guilty, and Malone and Andrews went to trial. They were initially tried on the charges in the Second Superseding Indictment in May 2006, but the jury was unable to reach a verdict. They were re-tried beginning in August 2006, and on September 20, 2006, the jury convicted Andrews on all charges. On January 19, 2011, the District Court sentenced Andrews to 151 months’ imprisonment on Counts One through Six, to be followed by three years of supervised release. The District Court also imposed a $17,500 fine. The District Court sentenced Andrews to two years’ imprisonment on Counts Seven and Eight, to be served concurrently with the sentence on Counts One through Six. Andrews filed a timely notice of appeal. On appeal, Andrews raises three arguments. First, he argues that after the Supreme Court’s decision in Skilling v. United States, — U.S. —, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), the District Court’s instruction to the jury on honest services fraud under 18 U.S.C. § 1346 was erroneous, and prejudice from the error spilled over to the other charges against him. Second, he contends that the evidence was insufficient to sustain his convictions for wire fraud (Counts Two through Five), program fraud (Count Six), and inducing a conflict of interest (Count Eight). Finally, Andrews maintains that the District Court improperly instructed the jury on Count Seven. II. The District Court had jurisdiction under 48 U.S.C. § 1612 and 18 U.S.C. § 3231, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Where there were no legal grounds for challenging an instruction at the time it was given, but such grounds have arisen, due to the articulation of a new rule of law between" } ]

[ { "docid": "23384186", "title": "", "text": "of a deceased party on appeal). Both parties agree that Thomas’s death renders moot the declaratory and injunctive relief awarded him by the district court. “Where a case becomes moot after the district court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss the appeal, vacate the district court’s judgment, and remand with instructions to dismiss as moot.” Bekier v. Bekier, 248 F.3d 1051, 1055-56 (11th Cir.2001) (citing United States v. Ghandtchi, 705 F.2d 1315, 1316 (11th Cir.1983)). However, although Thomas’s death deprives us of jurisdiction to determine the merits of his Eighth Amendment claim and the district court’s award of his injunctive relief, “[w]hen plaintiffs clearly succeeded in obtaining the relief sought before the district court and an intervening event rendered the case moot on appeal, plaintiffs are still ‘prevailing parties’ for the purposes of attorney’s fees for the district court litigation.” Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009). We thus hold that Thomas may still be a “prevailing party” entitled to attorneys’ fees for the costs of the district court litigation notwithstanding his untimely death and the subsequent mootness of his lawsuit pending appeal. Accordingly, we vacate the district court’s judgment and permanent injunction as to Thomas but grant the pending motion for substitution in order to allow the district court to resolve Thomas’s motion for attorney’s fees. The district court, in its discretion, may award fees to Thomas’s estate if it determines that Thomas “succeeded on any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989) (internal citation and quotation omitted). Our review of the instant suit is thus limited to the remaining live controversy between the defendants and plaintiff McKinney. Our task is to determine whether the district court erred in concluding that the DOC’s non-spontaneous use-of-force policy, as applied to McKinney, violates the Eighth Amendment and whether its permanent injunction was both necessary to remedy the violation" } ]

[ { "docid": "14363441", "title": "", "text": "the due process portion of Plaintiffs’ appeal. B. Plaintiffs’ Request for Attorney’s Fees As indicated, Plaintiffs also seek payment of their attorney’s fees as a prevailing party. For the reason that follow, the court believes that Plaintiffs are entitled to only a relatively small portion ($4,165) of their claimed fees. The IDEA provides that “[i]n any action or proceeding brought under [20 U.S.C. § 1415], the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.” 20 U.S.C. § 1415(i)(3)(B). As with many fee disputes, this one turns on the definition of “prevailing party.” However, unlike with some others — and PVPA’s argument to the contrary — the instant dispute is not complicated by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), which held that “there must be ‘judicial imprimatur on the change’ ” in the parties’ legal relationship before fees may be awarded. Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 22 (1st Cir.2005) (quoting Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835). As Magistrate Judge Collings observed in a case involving an appeal of a BSEA decision — which, like here, followed a multiple-day eviden-tiary hearing — “[p]ost-Buckhannon case law continues to support the premise that a plaintiff can achieve prevailing party status at an administrative level and therefore be entitled to attorneys’ fees and costs.” Antonio v. Boston Pub. Sch., 314 F.Supp.2d 95, 98, 99 (D.Mass.2004) (citing cases). The First Circuit defines “prevailing party” in the IDEA context as follows: [A] prevailing party is any party who “succeed[s] on any significant issue ... which achieves some of the benefits plaintiffs sought in bringing suit.” Hensley [v. Eckerhart], 461 U.S. [424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)]. The party’s success cannot be a hollow victory; it must materially alter the litigants’ legal relationship by modifying one party’s behavior in a way that directly benefits the other. Farrar v. Hobby, 506 U.S." }, { "docid": "2792214", "title": "", "text": "test: “(1) there must be a court-ordered change in the legal relationship of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” Green Aviation Mgmt. Co., LLC v. FAA, 676 F.3d 200, 203 (D.C.Cir.2012) (quoting Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C.Cir.2010) and District of Columbia v. Straus, 590 F.3d 898, 901 (D.C.Cir.2010)); see also District of Columbia v. Ijeabuonwu, 642 F.3d 1191, 1193-94 (D.C.Cir.2011). This “prevailing party” test applies generally to federal attorneys’ fee-shifting statutes, including the IDEA. See Straus, 590 F.3d at 901 (applying three-part test to IDEA case). Determining the reasonable attorneys’ fees to which a prevailing party is entitled entails a three-part analysis: “(1) determination of the number of hours reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or ‘lodestar;’ and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1517 (D.C.Cir.1988) (“SOCM”) (citation omitted). The fee applicant bears the burden of justifying the attorneys’ fees requested. See Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995) (“A fee applicant bears the burden of establishing an entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates.”) (citing Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Thus, in IDEA attorneys’ fees cases, the party seeking fees must show she is a prevailing party entitled to an award, and the SOCM test to show the reasonableness of the number of hours expended and the hourly billing rate. See Thomas v. Nat’l Science Found., 330 F.3d 486, 492 (D.C.Cir.2003); In re North (Bush Fee Application), 59 F.3d 184, 189 (D.C.Cir.1995) (“[T]he fee petitioner bears the burden of establishing all elements of his entitlement.”). To meet the latter burden, the plaintiff must submit evidence regarding “the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and the prevailing market rates in the relevant community.” Covington, 57 F.3d at 1107. Upon submission of such" }, { "docid": "13002208", "title": "", "text": "and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)) (internal quotation marks and alterations omitted). It is not enough to establish “prevailing party” status when a party has “secured [a] favorable out-of-court settlement[ ],” as the other party’s “voluntary actions ... lack the necessary judicial imprimatur.” Id. at 901 (citing Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835). Nor is it enough that a party secures a favorable ruling on mootness grounds. Id. at 902 (concluding that the hearing officer’s dismissal of the case on mootness grounds was “unaccompanied by judicial relief,” because the school district had already agreed to provide the relief sought at the hearing); but see District of Columbia v. Jeppsen, 514 F.3d 1287, 1291 (D.C.Cir.2008) (holding that the District was a “prevailing party” when one claim against it was dismissed as moot and another claim was dismissed on the merits). Rather, to establish “prevailing party” status under the Act, a party must satisfy a three-part test: “(1) there must be a ‘court-ordered change in the legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” Straus, 590 F.3d at 901 (citing Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C.Cir.2003)). Furthermore, where a defendant is seeking to establish “prevailing party” status, that party need not establish a court-ordered change in the legal relationship of the parties. Id. (“Although we developed this test in connection with requests for fees by plaintiffs, we have applied its latter two requirements to requests by defendants as well.”); Jeppsen, 514 F.3d at 1290 (D.C.Cir.2008) (concluding that a defendant who obtains a dismissal on the merits qualifies as a “prevailing party,” despite there not being any court-ordered change in the legal relationship of the parties). Applying the Thomas test to the facts of this case, the Court finds that the District has sufficiently alleged that it is a “prevailing party” under the Act. Because the District was" }, { "docid": "19916161", "title": "", "text": "(3d Cir.1989). Gomez-Colon argues that the same rule should apply to judgments vacated as moot. We reject this argument, which misunderstands the difference between reversal on the merits and vacatur of a moot case. Reversal on the merits deprives a plaintiff of “prevailing party” status because it repudiates the favorable change in the parties’ legal relationship effectuated by the district court’s judgment and holds that the plaintiff was never legally entitled to such relief. In contrast, in the mootness context, a “prevailing party” is a party who managed to obtain a favorable, material alteration in the legal relationship between the parties prior to the intervening act of mootness. See Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835; see also Grano v. Barry, 783 F.2d 1104, 1108 (D.C.Cir.1986). Courts of appeals apply this test by looking only to what relief the district court granted and not to whether the case was rightly decided. See Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805-06 (9th Cir.2009) (collecting cases). Thus, a plaintiff cannot be a “prevailing party” when his lawsuit prompted a favorable legislative outcome but had produced no judicial decision at the time the legislation mooted the case. See Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835. Similarly, a party is not a “prevailing party” at the appeals stage, entitled to attorney’s fees for the cost of appellate litigation, if the case becomes moot pending appeal. See Lewis, 494 U.S. at 483, 110 S.Ct. 1249. But the Supreme Court has explicitly left open the question presented in this case, observing that “[w]hether [a plaintiff] can be deemed a ‘prevailing party’ in the District Court, even though its judgment was mooted after being rendered but before the losing party could challenge its validity on appeal, is a question of some difficulty.” Id. We agree the question is difficult, but we must decide it. Numerous circuits have held both before and after Lewis that an award of fees is within the discretion of the district court. We agree. When plaintiffs clearly succeeded in obtaining the relief sought before the district" }, { "docid": "13613676", "title": "", "text": "Grano ] produced a lasting change in the parties’ legal circumstances and gave the plaintiffs the precise relief that they had sought.” Thomas v. Nat’l Sci. Found., 330 F.3d 486, 493 (D.C.Cir.2003). Here, Texas does not dispute that this Court’s denial of preclearance altered the legal relationship between it and Fee Applicants. Nor does Texas dispute that on June 26, 2013, it repealed the very voting maps for which it had sought preclearance and replaced them with redistricting maps that were substantially similar to the voting districts ordered by the District Court in Texas. Although the Supreme Court ultimately vacated this Court’s opinion, neither Shelby County nor the vacatur erased the real-world vindication that Fee Applicants had achieved. In line with this Circuit’s precedents and those in other courts of appeals, the Court finds that Defendant-Intervenors did not lose prevailing-party status due to subsequent mootness. See Thomas, 330 F.3d at 493; Nat’l Black Police Ass’n, 168 F.3d at 528; Grano, 783 F.2d at 1108-09; see also Thomas v. Bryant, 614 F.3d 1288, 1294 (11th Cir.2010) (“[W]hen plaintiffs clearly succeeded in obtaining the relief sought before the district court and an intervening event rendered the case moot on appeal, plaintiffs are still ‘prevailing parties’ for the purposes of attorney’s fees for the district court litigation.” (quoting Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir.2009) (internal quotation marks omitted))); Palmer v. City of Chicago, 806 F.2d 1316, 1321 (7th Cir.1986) (assuming without deciding that it is possible for a party to “win” even though “after some relief has been obtained[,] the case becomes moot—is in effect interrupted before it can reach its normal conclusion (unless the [prevailing party] caused it to become moot)”); cf.UFO Chuting of Haw., Inc. v. Smith, 508 F.3d 1189, 1197 (9th Cir.2007) (“[W]hen ‘a party ... achieves the objective of its suit by means of an injunction issued by the district eourt[, it] is a prevailing party in that court, notwithstanding the fact that the case becomes moot, through no acquiescence by the defendant, while the order is on appeal.’” (quoting Dahlem v. Bd. of Educ. of" }, { "docid": "20173834", "title": "", "text": "id. at 603, 121 S.Ct. 1835. Like these statutes, the IDEA allows parents who are “prevailing parities]” to recover attorney’s fees incurred in both administrative and judicial proceedings. 20 U.S.C. § 1415(i)(3)(B)(i)(I); see also Moore, 907 F.2d at 167. Central to the issue before us, the IDEA also allows school districts to recover fees if they prevail in litigation brought by parents. Specifically, subsection II of section 1415(i)(3)(B)(i) authorizes awards of attorneys’ fees to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation!.] Id. § 1415(i)(3)(B)(i)(II). As the Supreme Court explained in Buckhannon, “the term ‘prevailing party’ [is] a legal term of art” that requires more than achieving the desired outcome; the party seeking fees must also have “been awarded some relief by the court.” 532 U.S. at 603, 121 S.Ct. 1835. In Buckhannon, the Court rejected the so-called catalyst theory under which some courts had awarded fees to plaintiffs’ lawyers who secured favorable out-of-court settlements. According to the Court, such voluntary actions by defendants “lack[] the necessary judicial imprimatur.” Id. at 605, 121 S.Ct. 1835. Following Buckhannon, we articulated a three-part test for determining prevailing-party status: (1) there must be a “court-ordered change in the legal relationship” of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief. Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C.Cir.2003) (internal quotation marks and alterations omitted). Although we developed this test in connection with requests for fees by plaintiffs, we have applied its latter two requirements to requests by defendants as well. Jeppsen, 514 F.3d at 1290 (finding that a dismissal on the merits qualifies the defendant as a prevailing party). In this case, the second factor is easily satisfied. The hearing officer’s dismissal of the case was" }, { "docid": "10094588", "title": "", "text": "(“IDEA”) Pursuant to the IDEA, a district court may award “reasonable attorneys’ fees”- to a prevailing party who is the parent of a child with a disability. 20 U.S.C. § 1415(i)(3)(B). Accordingly, a court bases its award of fees on a two-step inquiry: first, the court must determine whether the party seeking attorney’s fees is the prevailing party, and second, the court must determine whether the requested fees are reasonable. See Jackson v. Dist. of Columbia, 696 F.Supp.2d 97, 101 (D.D.C.2010). First, a plaintiff must demonstrate that she is a “prevailing party” to recover any attorney’s fees under the IDEA. 20 U.S.C. § 1415(i)(3)(B). A “prevailing party” is one “who has been awarded some relief by the court.” Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Specifically, “plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278 (1st Cir.1978)); see also Artis ex rel. S.A. v. Dist. of Columbia, 543 F.Supp.2d 15, 22 (D.D.C.2008) (noting that “[ajlthough a hearing office may make a prevailing party determination, it is the province of the district court to make the ultimate decision as to who prevailed in an IDEA action”). In District of Columbia v. Straus, the Court of Appeals applied a three-part test to determine prevailing party status: “(1) there must be a ‘court-ordered change in the legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” 590 F.3d 898, 901 (D.C.Cir.2010) (quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C.Cir.2003)). After concluding that a plaintiff is a “prevailing party,” the court must then determine whether the fees sought are reasonable. 20 U.S.C. § 1415(i)(3)(B). As this will depend on" }, { "docid": "13613667", "title": "", "text": "605-06, 121 S.Ct. 1835 (internal quotations and citations omitted). Since Buckhannon, the D.C. Circuit has adopted a three-part test for adjudicating prevailing-party status. Prevailing-party status turns on whether there is “(1) ... a court-ordered change in the legal relationship of the parties; (2) [a] judgment ... in favor of the party seeking the fees; and (3)[a] judicial pronouncement ... accompanied by judicial relief.” Green Aviation Mgmt. Co. v. FAA, 676 F.3d 200, 203 (D.C.Cir.2012) (internal quotation marks and citation omitted). Markedly, only the latter two prongs are relevant when a defendant is the party seeking attorney fees. Id. at 204. Buckhannon expressly recognized only .two appropriate bases for awarding attorney fees—judgments on the merits and settlements enforced through consent decrees. Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (“We have only awarded attorney’s fees where the plaintiff has received a judgment on the merits, or obtained a court-ordered consent decree.” (internal citations omitted)). Prevailing-party status in this jurisdiction, however, is not so limited. Under the D.C. Circuit’s construction of Buckhannon, a litigant in this jurisdiction need only establish that s/he received “some form of judicial relief, not necessarily a court-ordered consent decree or a judgment on the merits.” Turner v. Nat'l Transp. Safety Bd., 608 F.3d 12, 15 (D.C.Cir.2010). The D.C. Circuit has recognized that, under certain circumstances, prevailing-party status may result from a favorable jurisdictional ruling, a grant of preliminary injunction, or even a judicially-sanctioned stipulation. Id. (cit ing with approval District of Columbia v. Jeppsen ex rel. Jeppsen, 514 F.3d 1287, 1290 (D.C.Cir.2008); Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 945 (D.C.Cir.2005); Carbonell v. INS, 429 F.3d 894, 895-96, 899 (9th Cir.2005)). 2. Fee Applicants’ Arguments Although each Fee Applicant moves separately for attorney fees, their arguments for prevailing-party status largely overlap and can be summarized. Fee Applicants state that they joined the litigation to oppose preclearance for Plans C185, H283, and/or S148. This Court first denied pre-clearance to Texas on summary judgment, with the result that the District Court in the Western District of Texas imposed interim maps that re-drew some voting districts. Following a" }, { "docid": "13002207", "title": "", "text": "against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or (III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. The threshold question the Court must resolve in determining whether the plaintiff is entitled to attorneys’ fees under 20 U.S.C. § 1415(i)(3)(B)(i) is whether the plaintiff was a “prevailing party” in the administrative action. “[T]he term ‘prevailing party’ is a legal term of art that requires more than achieving the desired outcome; the party seeking fees must also have been awarded some relief by the Court.” District of Columbia v. Straus, 590 F.3d 898, 901 (D.C.Cir.2010) (citing Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)) (internal quotation marks and alterations omitted). It is not enough to establish “prevailing party” status when a party has “secured [a] favorable out-of-court settlement[ ],” as the other party’s “voluntary actions ... lack the necessary judicial imprimatur.” Id. at 901 (citing Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835). Nor is it enough that a party secures a favorable ruling on mootness grounds. Id. at 902 (concluding that the hearing officer’s dismissal of the case on mootness grounds was “unaccompanied by judicial relief,” because the school district had already agreed to provide the relief sought at the hearing); but see District of Columbia v. Jeppsen, 514 F.3d 1287, 1291 (D.C.Cir.2008) (holding that the District was a “prevailing party” when one claim against it was dismissed as moot and another claim was dismissed on the merits). Rather, to establish “prevailing party” status under the Act, a party must satisfy a three-part test:" }, { "docid": "20715194", "title": "", "text": "party must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. The non-moving party cannot rely on allegations or conelusory statements; instead, the non-moving party is obliged to present specific facts that would enable a reasonable jury to find it its favor. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). 1. Prevailing Party Status The IDEA gives courts authority to award reasonable attorney’s fees to the parents of a child with a disability who is the prevailing party. 20 U.S.C. § 1415(i)(3)(B). The court must initially determine whether the party seeking attorney’s fees is the prevailing party. Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C.2010). See District of Columbia v. West, 699 F.Supp.2d 273, 278 (D.D.C.2010) (in considering a claim for IDEA attorney’s fees, it is the court “not the hearing officer in the administrative proceeding, which determines prevailing party status.”) (quoting D.C. v. Straus, 607 F.Supp.2d 180, 183 (D.D.C.2009)). A party is generally considered to be the prevailing party if he succeeds “on any significant issue in litigation which achieves some of the benefit [ ] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978)). The Supreme Court has indicated that the term “prevailing party” only includes plaintiffs who “secure a judgment on the merits or a court-ordered consent decree.” Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t Health & Human Resources, 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The Supreme Court therefore rejected the “catalyst theory” whereby a plaintiff would be a prevailing party if the lawsuit brought about the desired result through a voluntary change in the defendant’s' conduct. Id. at 605, 121 S.Ct. 1835. The Supreme Court instead determined that a prevailing party must obtain a “material alteration of the legal relationship of the parties.” Id. at 604, 121 S.Ct. 1835 (quoting Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109" }, { "docid": "21674133", "title": "", "text": "to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d)(1)(A). As a condition of receiving federal funds under the Act, IDEA requires school districts to adopt procedures to ensure appropriate educational placement of disabled students and to develop comprehensive plans for meeting the special educational needs of these students. See 20 U.S.C. §§ 1413, 1414(d)(2)(A). Parents who object to their child’s “identification, evaluation, or educational placement” are entitled to an “impartial due process hearing,” 20 U.S.C. §§ 1415(b)(6), (f)(1), where they have a “right to be accompanied and advised by counsel.” 20 U.S.C. § 1415(h)(1). Parents who are “aggrieved by” a hearing officer’s decision may bring a civil action in either state or federal court. 20 U.S.C. § 1415(f)(2). IDEA gives courts the authority to “award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party” in any action brought under the Act. 20 U.S.C. § 1415(i)(3)(B). It is well-established in this Circuit that section 1415(i)(3)(B) also authorizes a parent who prevails in an IDEA administrative hearing to recover attorney’s fees by filing suit for the fees in federal court. See Moore v. Dist. of Columbia, 907 F.2d 165, 176 (D.C.Cir.1990); Holbrook v. Dist. of Columbia, 305 F.Supp.2d 41, 44 (D.D.C.2004). And, although Congress has placed a cap on the amount of attorney’s fees the District of Columbia can pay lawyers of parents who prevail in IDEA actions and proceedings, the D.C. Circuit has held that courts can still award attorney’s fees above the statutory cap despite DCPS’s lack of authority to pay them. Calloway v. Dist. of Columbia, 216 F.3d 1, 9 (D.C.Cir.2000). This suit encompasses fifty-two fee petitions for forty-two minors, all of whom were represented by attorney Donna Wul-kan and prevailed at their separate administrative due process hearings during 2002-2004. Each plaintiff submitted detailed documentation to DCPS listing the attorney’s fees and costs they incurred in an attempt to obtain reimbursement from DCPS instead of seeking a court-ordered fee award. In response to twenty-nine of the invoices, DCPS" }, { "docid": "21184923", "title": "", "text": "U.S. Attorney’s Office Laf-fey Matrix (“USAO Laffey Matrix”) , id. at *5, after indicating that this rate was counsel’s normal billing rate for work performed during the period when services were rendered to the plaintiff, see Decl. of Domiento C.R. Hill, ¶¶ 15-16, EOF No. 10-14. The District did not challenge the hourly rate proffered as reasonable by the plaintiff but instead • ultimately disputed, unsuccessfully, only two of dozens of billing entries submitted by the plaintiffs attorney in connection with her successful administrative action. Jones, 2015 WL 5093559, at *6. After neither party filed a timely objection, this Court adopted the R & R in full on August 18, 2015. See id. at *1. Having prevailed in her action to obtain attorneys’ fees arising from the administrative proceedings, the plaintiff has now moved, pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), to obtain’ reimbursement of $10,468.50 of attorneys’ fees and costs incurred in litigating in federal court her successful petition for fees and costs. See Pl.’s Mot. at 1. II. LEGAL STANDARD The. IDEA provides that “the court, in its discretion may award reasonable attorneys’ fees ... to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i). This statutory language makes plain that a prevailing party in an IDEA action may seek the award of attorneys’ fees that are “reasonable.” Id. The D.C. Circuit has developed a “three-part” analysis for assessing whether a requested fee award is reasonable under federal statutes authorizing fee-shifting. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C.Cir.2015). “First, the court must determine the number of hours reasonably expended in litigation. Second, it must set the reasonable hourly rate. Finally, it must determine whether use of a multiplier is warranted.” Id. (internal citations and quotations omitted). With regard to the proposed hourly rate, the Court considers three sub-elements: “(1) ‘the attorney[’s] billing practices,’ (2) ‘the attorney[’s] skill, experience, and reputation’ and (3) ‘the prevailing market rates in the relevant community.’ Id. (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107-08 (D.C.Cir.1995)). The availability of reasonable" }, { "docid": "2792213", "title": "", "text": "own attorney’s fees.” Astrue v. Ratliff, 560 U.S. 586, 180 S.Ct. 2521, 2525, 177 L.Ed.2d 91 (2010) (internal quotations and citations omitted; brackets in original). The Court has made clear that just because a party has “achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct,” does not trigger “prevailing party” status. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (“Buckhannon”). Rather, the “ ‘touchstone of the prevailing party inquiry’ ” is “ ‘the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.’ ” Sole v. Wyner, 551 U.S. 74, 82, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007) (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). In determining whether a party is the “prevailing party,” the D.C. Circuit has interpreted Buckhannon as requiring a three part test: “(1) there must be a court-ordered change in the legal relationship of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” Green Aviation Mgmt. Co., LLC v. FAA, 676 F.3d 200, 203 (D.C.Cir.2012) (quoting Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C.Cir.2010) and District of Columbia v. Straus, 590 F.3d 898, 901 (D.C.Cir.2010)); see also District of Columbia v. Ijeabuonwu, 642 F.3d 1191, 1193-94 (D.C.Cir.2011). This “prevailing party” test applies generally to federal attorneys’ fee-shifting statutes, including the IDEA. See Straus, 590 F.3d at 901 (applying three-part test to IDEA case). Determining the reasonable attorneys’ fees to which a prevailing party is entitled entails a three-part analysis: “(1) determination of the number of hours reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or ‘lodestar;’ and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1517 (D.C.Cir.1988) (“SOCM”) (citation omitted). The fee applicant" }, { "docid": "20173835", "title": "", "text": "603, 121 S.Ct. 1835. In Buckhannon, the Court rejected the so-called catalyst theory under which some courts had awarded fees to plaintiffs’ lawyers who secured favorable out-of-court settlements. According to the Court, such voluntary actions by defendants “lack[] the necessary judicial imprimatur.” Id. at 605, 121 S.Ct. 1835. Following Buckhannon, we articulated a three-part test for determining prevailing-party status: (1) there must be a “court-ordered change in the legal relationship” of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief. Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C.Cir.2003) (internal quotation marks and alterations omitted). Although we developed this test in connection with requests for fees by plaintiffs, we have applied its latter two requirements to requests by defendants as well. Jeppsen, 514 F.3d at 1290 (finding that a dismissal on the merits qualifies the defendant as a prevailing party). In this case, the second factor is easily satisfied. The hearing officer’s dismissal of the case was in “favor” of the District, Thomas, 330 F.3d at 493 (internal quotation marks omitted), and Straus nowhere argues otherwise. Focusing on the third factor, the District argues that the hearing officer’s “pronouncement [was] [ ]accompanied by judicial relief,” id., because he “rejected the administrative complaint on its merits,” Appellant’s Br. 21. In support, the District points out that in addition to seeking an evaluation, the complaint asked for a declaration that D.R. was denied a FAPE. “By pursuing the litigation,” the District argues, “Straus demanded a decision on the merits.” Id. at 22. As the District also notes, the hearing officer found that D.R. “suffered no educational harm.” SHO decision at 4. Given the hearing officer’s conclusion that the Nyankori letter mooted the case, however, the language the District relies on is dicta. As the hearing officer himself made quite clear, the “only issue before [him] is DCPS’ alleged failure to conduct a psychiatric evaluation,” which he concluded “was mooted by DCPS’ prompt authorization of an independent evaluation.” SHO decision at 3 (emphasis added). Moreover," }, { "docid": "21184924", "title": "", "text": "provides that “the court, in its discretion may award reasonable attorneys’ fees ... to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i). This statutory language makes plain that a prevailing party in an IDEA action may seek the award of attorneys’ fees that are “reasonable.” Id. The D.C. Circuit has developed a “three-part” analysis for assessing whether a requested fee award is reasonable under federal statutes authorizing fee-shifting. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C.Cir.2015). “First, the court must determine the number of hours reasonably expended in litigation. Second, it must set the reasonable hourly rate. Finally, it must determine whether use of a multiplier is warranted.” Id. (internal citations and quotations omitted). With regard to the proposed hourly rate, the Court considers three sub-elements: “(1) ‘the attorney[’s] billing practices,’ (2) ‘the attorney[’s] skill, experience, and reputation’ and (3) ‘the prevailing market rates in the relevant community.’ Id. (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107-08 (D.C.Cir.1995)). The availability of reasonable attorneys’ fees applies to fees incurred in IDEA litigation both before administrative agencies and in federal court, as well as to fees incurred to vindicate a plaintiffs right to fees. Thus, the D.C. Circuit held in Kaseman v. District of Columbia that “parties who prevail at the administrative level can also recover fees-on-fees, as [the D.C. Circuit’s] general rule is that the court may award additional fees for ‘time reasonably devoted to obtaining attorney’s fees.’ ” 444 F.3d 637, 640 (D.C.Cir.2006) (quoting Envtl. Def. Fund v: EPA, 672 F.2d 42, 62 (D.C.Cir.1982)). In broadly allowing successful plaintiffs to obtain fees-on-fees, the D.C. Circuit has emphasized that the availability of such awards “is essential to carrying out Congress’ goal in including [fee-shifting] provision[s] in the first place.” Am. Fed’n of Gov’t Emps., AFL-CIO, Local 8882 v. Fed. Labor Relations Auth., 994 F.2d 20, 22 (D.C.Cir.1993) (emphasis added). In this way, “such fees are often necessary to fulfill the purposes of the statutory scheme on which the action is based.” Id. In general, “[t]he ‘fee applicant bears" }, { "docid": "20173833", "title": "", "text": "and because Straus “continued to litigate the complaint after it had clearly become groundless.” Appellant’s Br. 3; see also 20 U.S.C. § 1415(i)(3)(B)(i)(II) (authorizing the award of attorney’s fees when the school district is the prevailing party and the parents’ attorney litigated frivolously). The district court disagreed, concluding that the District does not qualify as a prevailing party because it “secure[d] a dismissal for mootness ... by [its] voluntary conduct.” Straus, 607 F.Supp.2d at 184. The court therefore entered summary judgment for Straus. The District appeals, and our review is de novo, see District of Columbia v. Jeppsen, 514 F.3d 1287, 1289-90 (D.C.Cir.2008) (reviewing a summary judgment determination de novo). II In the American legal system, litigants generally bear their own litigation costs. Congress, however, has enacted a number of fee-shifting statutes that alter this rule, including most notably the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. Buckhannon, 532 U.S. at 602-03, 121 S.Ct. 1835 (listing fee-shifting statutes). Such statutes authorize courts to award fees to the “prevailing party.” See id. at 603, 121 S.Ct. 1835. Like these statutes, the IDEA allows parents who are “prevailing parities]” to recover attorney’s fees incurred in both administrative and judicial proceedings. 20 U.S.C. § 1415(i)(3)(B)(i)(I); see also Moore, 907 F.2d at 167. Central to the issue before us, the IDEA also allows school districts to recover fees if they prevail in litigation brought by parents. Specifically, subsection II of section 1415(i)(3)(B)(i) authorizes awards of attorneys’ fees to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation!.] Id. § 1415(i)(3)(B)(i)(II). As the Supreme Court explained in Buckhannon, “the term ‘prevailing party’ [is] a legal term of art” that requires more than achieving the desired outcome; the party seeking fees must also have “been awarded some relief by the court.” 532 U.S. at" }, { "docid": "13002209", "title": "", "text": "“(1) there must be a ‘court-ordered change in the legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” Straus, 590 F.3d at 901 (citing Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C.Cir.2003)). Furthermore, where a defendant is seeking to establish “prevailing party” status, that party need not establish a court-ordered change in the legal relationship of the parties. Id. (“Although we developed this test in connection with requests for fees by plaintiffs, we have applied its latter two requirements to requests by defendants as well.”); Jeppsen, 514 F.3d at 1290 (D.C.Cir.2008) (concluding that a defendant who obtains a dismissal on the merits qualifies as a “prevailing party,” despite there not being any court-ordered change in the legal relationship of the parties). Applying the Thomas test to the facts of this case, the Court finds that the District has sufficiently alleged that it is a “prevailing party” under the Act. Because the District was the defendant in the administrative proceeding, the first prong of the Thomas test is not applicable. Furthermore, the second prong of the test is easily satisfied because the District obtained a judgment in its favor when the administrative hearing officer dismissed P.M.’s due process complaint. As for the third prong, the Hearing Officer made a “judicial pronouncement ... accompanied by judicial relief,” Straus, 590 F.3d at 901 (citing Thomas, 330 F.3d at 492), by issuing a finding in favor of the District that the three-month delay in authorizing the evaluations was not “unreasonable,” and that because P.M. was “already receiving] the maximum level of services available for a child with her level of disability, ... [and P.M. was] making satisfactory progress on her ... goals” that were set forth in her individualized educational plan, she did not suffer “educational harm as a consequence of the evaluations not having been considered.” Pl.’s Opp’n, Ex. B (Hearing Offi cer’s Decision, October 26, 2008), at 3-4. The District, having satisfied all three prongs of the Thomas test, therefore" }, { "docid": "20715196", "title": "", "text": "S.Ct. 1486, 103 L.Ed.2d 866 (1989)). The standards in Buckhannon apply to administrative hearings under the IDEA even though the relief granted is administrative as opposed to. judicial. Abarca v. District of Columbia, Civil Action No. 06-1254, 2007 WL 1794101 *2 n. 1 (D.D.C. June 19, 2007). “[T]he term prevailing party [is] a legal term of art that requires more than achieving the desired outcome; the party seeking fees must also have been awarded some relief by the court.” District of Columbia v. Straus, 590 F.3d 898, 901 (D.C.Cir.2010) (internal quotations and citations omitted). In Straus, the Court of Appeals considered the following three factors to determine prevailing party status: 1) alteration of the legal relationship between the parties; 2) a favorable judgment for the party requesting fees; and 3) a judicial pronouncement accompanied by judicial relief. Id. at 901. 2. Fee Requests The plaintiff has the burden of establishing the reasonableness of any fee requests. See In re North, 59 F.3d 184, 189 (D.C.Cir.1995). See also Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995) (“[A] fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates.”) “An award of attorneys’ fees is calculated by multiplying a reasonable hourly rate by the number of hours reasonably expended on the case.” Smith v. Roher, 954 F.Supp. 359, 364 (D.D.C.1997) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)); see also Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The IDEA states that “[flees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C). To demonstrate a reasonable hourly rate, the fee applicant must show: (1) an attorney’s usual billing practices; (2) counsel’s skill, experience and reputation; (3) the prevailing market rates in the community. Covington, 57 F.3d at 1107 (citations omitted.) The determination of a “ ‘market rate’ for the services of a lawyer" }, { "docid": "5253924", "title": "", "text": "administrative review is available through the State educational agency. See 20 U.S.C. 1415(i)(2)(A). II. Attorneys’Fees and Costs Congress has provided that in “any action or proceeding brought under [the IDEA], the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B). Attorneys’ fees must be “based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)©. If the court finds that the hourly rate claimed by counsel unreasonably exceeds the prevailing rate for similar services charged by attorneys of reasonably comparable skill, reputation or experience, or that the time spent was excessive considering the nature of the action, the court must reduce the amount of fees awarded under the statute. 20 U.S.C. § 1414(i)(3)(F)(iii). A.Prevailing Party Status The Board denies that C. obtained all the relief he sought in the administrative hearing but does not seriously contest his claim that he qualifies as a prevailing party for purposes of the IDEA’S fee-shifting provision. The essential test for prevailing party status is whether a party successfully obtains a “material alteration of the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). In an administrative proceeding, the “combination of administrative imprimatur, the change in the legal relationship of the parties arising from it, and subsequent judicial enforceability, render such a winning party a ‘prevailing party’ under Buckhannon’s principles.” A.R. v. N.Y. City Dep’t of Educ., 407 F.3d 65, 76 (2d Cir.2005). As discussed above, the hearing officer considered four issues and ruled in C.’s favor on all of them. (See Pl.’s Mem. Supp. Mot. Summ. J. Ex. A 20). Accordingly, there is no doubt that C. should be regarded as a prevailing party entitled to attorney’s fees under 20 U.S.C. § 1415(i)(3)(B). B.The Lodestar Calculation Determining the amount of attorney’s fees that C." }, { "docid": "10094589", "title": "", "text": "suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278 (1st Cir.1978)); see also Artis ex rel. S.A. v. Dist. of Columbia, 543 F.Supp.2d 15, 22 (D.D.C.2008) (noting that “[ajlthough a hearing office may make a prevailing party determination, it is the province of the district court to make the ultimate decision as to who prevailed in an IDEA action”). In District of Columbia v. Straus, the Court of Appeals applied a three-part test to determine prevailing party status: “(1) there must be a ‘court-ordered change in the legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” 590 F.3d 898, 901 (D.C.Cir.2010) (quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C.Cir.2003)). After concluding that a plaintiff is a “prevailing party,” the court must then determine whether the fees sought are reasonable. 20 U.S.C. § 1415(i)(3)(B). As this will depend on a case’s particular facts, “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate” — the so-called “lodestar fee.” Hensley, 461 U.S. at 433, 103 S.Ct. 1933; see 'also Jackson, 696 F.Supp.2d at 101 (applying Hensley in the IDEA context). The plaintiff bears the burden of establishing the reasonableness of any fee requests, specifically that both the hourly rate and the number of hours spent on any particular task are reasonable. In re North, 59 F.3d 184, 189 (D.C.Cir.1995). A plaintiff may do so by submitting evidence on at least three fronts: “the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and the prevailing market rates of the relevant ‘community.” Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995). Once the plaintiff has provided such information, a presumption arises that the number of hours billed is reasonable and the burden shifts to the defendant to rebut the plaintiffs showing. Id. at 1109-10. However, if" } ]

[ { "docid": "23310441", "title": "", "text": "prediction of anticompetitive effects “is sound only if it is based upon a firm understanding of the structure of the relevant market; yet the relevant economic data are both complex and elusive. . . . And unless businessmen can assess the legal consequences of a merger with some confidence, sound business planning is retarded. ... So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation. . . . And so in any case in which it is possible, without doing violence to the congressional objective embodied in § 7, to simplify the test of illegality, the courts ought to do so in the interest of sound and practical judicial administration.” We stated in Brown Shoe, supra, at 315, that “[t]he dominant theme pervading congressional consideration of the 1950 amendments [to § 7] was a fear of what was considered to be a rising tide of economic concentration in the American economy.” In Philadelphia Bank, supra, at 363, we held that “[t]his intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anti-competitive effects.” That principle is applicable to this case. The commercial banking market in Phillipsburg-Easton is already concentrated. Of its seven banks, the two largest in 1967 — Easton National Bank and Lafayette Trust Co. — had 49% of its total banking assets, 56% of its total deposits, 49% of its total loans and seven of its 16 banking offices. Easton National is itself the product of the merger of two smaller banks in 1959. The union of PNB-SNB would, in turn, significantly increase commercial banking concentration in “one town.” The combined bank" } ]

[ { "docid": "13454853", "title": "", "text": "Brown Shoe Co. v. United States, 370 U.S. at 323, 82 S.Ct. 1502. That concentration and its tendency to increase comprise the touchstone for appraising the threat from a merger is squarely and trenchantly put by Mr. Justice Brennan in United States v. Philadelphia National Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963): “This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.” (Accent added.) The determination now in issue may be rested on this thesis alone. The adequacy of this measurement of proof was repeated in United States v. General Dynamics Corporation, 415 U.S. 486, 497, 94 S.Ct. 1186, 39 L.Ed.2d 530 (1974). The figures for the year (1968) previous to purchase are informative on the issue of concentration and its trend. To begin with, 54.44 percent of the all-dog-food market in 1968 was held by only four firms. Of these, Liggett, holding 10.99 percent of that market, was fourth in line. During the same year, Ready Foods (later Perk) was sixth with 4.41 percent of the market. In 1969, in large part because of the acquisition, the top four firms increased their share of the market to 59.01 percent, and Liggett (now holding both Perk and Allen) with 15.76 percent of the market has risen to second place among all manufacturers of dog food. In the submarket comprising all canned dog food, at least 59 percent of the sales volume was foreclosed by four firms in 1968. Liggett was in first place with 22.2 percent of the market, while Ready Foods (Perk) was fifth with 4.4 percent. In 1969, the top four firms" }, { "docid": "3353990", "title": "", "text": "had entered it, including several battery manufacturers who tried recycling secondary lead for a time but gave up, and that start-up costs for a new entry into the business were steadily rising. In finding that these factors supported the conclusion that the RSR/Quemetco merger was inherently likely to lessen competition in the secondary lead industry, the FTC relied on the Supreme Court’s holding in United States v. Philadelphia National Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963), where the Court stated: [W]e think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects. The Court further noted that “if concentration is already great, the importance of preventing even slight increases in concentration and so preserving the possibility of eventual deconcentration is correspondingly great.” Id. at 365 n. 42, 83 S.Ct. at 1742. In Philadelphia National Bank, where the top four firms had a market share of 78%, the Court found that a post-merger market share of 30% raised an inference that the merger was anticompetitive. Id. at 364-65, 83 S.Ct. 1715. Post-merger market data thus may be sufficient to support a finding that a merger was anticompetitive. The Court cautioned, however, that a merger resulting in less than a 30% post-merger market share for the merged company would not raise an inference that the merger did not violate Section 7. Id. at 364 n. 41, 83 S.Ct. 1715. RSR argues that the post-merger data— showing the RSR/Quemetco market share to be 19.18% and the top four’s market share to be 72.41% — do not present a market share large enough to create a presumption of illegality. In rebuttal, the FTC points to cases holding concentrations smaller than those involved here sufficient to raise a presumption of illegality. See United States v. Pabst Brewing Co.," }, { "docid": "8522531", "title": "", "text": "the market, the acquisition violated § 7. The court finds that both a substantial entry effect and a substantial edge effect were eliminated by the acquisition. Either one of these anticompeti-tive effects alone would have been sufficient to make the acquisition illegal under § 7; their combination renders the anticompetitive consequences of the acquisition even greater. The Standards Used in Assessing the Effects on Competition of an Acquisition Under § 7 — Objective vs. Subjective Evidence The Supreme Court in evaluating the effect on competition of an acquisition has moved toward an increased reliance on objective rather than subjective evidence of management’s intent. In 1962 in Brown Shoe, supra, 370 U.S. at 342 n. 69, 82 S.Ct. at 1538, the Court recog nized “that in eases of this type precision in detail is less important than the accuracy of the broad picture presented.” The Court held that a merger of two healthy, profitable horizontal competitors which jointly held 5% of the market violated § 7. The following year, in Philadelphia National Bank, supra, the Court stated: “Clearly, this is not the kind of question which is susceptive of a ready and precise answer in most cases. It requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future; this is what is meant when it is said that the amended § 7 was intended to arrest anticompetitive tendencies in their ‘incipiency’ . . . yet the relevant economic data are both complex and elusive. ... So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation.” 374 U.S. at 362, 83 S. Ct. at 1741. Because of concern with high levels of concentration in Philadelphia National Bank, the Supreme Court concluded that objective economic facts must be emphasized : “This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. . . . Specifically, we think that a merger which produces a" }, { "docid": "23500098", "title": "", "text": "the size of the entities involved “makes them inherently suspect in light of Congress’ design to prevent undue [economic] concentration,” thereby resulting in a “significant” increase in market share and an “undue” market concentration. United States v. Philadelphia National Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915, 945 (1963). If, however, the size of the entities involved is not “inherently suspect,” then the plaintiff may show that other characteristics of the market make the merger or acquisition more economically harmful than the bare market share and market concentration statistics otherwise indicate. Cf. Brown Shoe, 370 U.S. at 343-44, 82 S.Ct. at 1534, 8 L.Ed.2d at 546-47. See generally L. Sullivan, Antitrust § 204 at 616-26 (1977). In the Philadelphia National Bank case the government challenged a merger of the second and third largest commercial banks in the Philadelphia metropolitan area. The resulting bank would have been the largest bank in the area, controlling approximately thirty percent of the commercial banking market. Before the merger, the two largest banks in the area controlled approximately forty-five percent of the market. After the merger, the two largest banks would have controlled approximately sixty percent. 374 U.S. at 331, 364-65, 83 S.Ct. at 1724, 1742, 10 L.Ed.2d at 945, 946. The Supreme Court, “without attempting to specify the smallest market share which would still be considered to threaten undue concentration,” held that a market share of thirty percent and a concentration increase of fifteen percent threatened competition within the meaning of the Clayton Act. 374 U.S. at 364, 83 S.Ct. at 1742, 10 L.Ed.2d at 945. The record before us does not contain specific data regarding market concentration before or after Holiday Inns acquired the Chateau LeMoyne. The evidence does suggest, however, that the market is competitive, and not dominated by a few very powerful hotels or hotel chains. In the light of this fact and the fact that Holiday Inns’ holds four percent of the hotel room market, as a matter of law, this acquisition is not “inherently suspect” within the meaning of Philadelphia National Bank. If a plaintiff" }, { "docid": "22970639", "title": "", "text": "curative. We conclude that there is no ground for requiring the Corporation to wait until there has been an actual lessening of competition. Furthermore, we believe that it was proper for the Board to rely on a comparison of percentage market shares as a basis for analyzing the anticompetitive effects of the acquisition. The Supreme Court addressed this point in Philadelphia National Bank and concluded that thé “intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anti-competitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in the market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.” 374 U.S. at 363, 83 S.Ct. at 1741. In its opinion letter, the Board stated that the acquisition of Mutual would result in FWN having approximately 17.5 percent of the relevant market and would increase the percentage of savings business done by the three leading financial institutions from 30.8 percent to 37.4 percent. In these circumstances, it cannot be said that the Board was arbitrary in concluding that presentation of extensive data on market behavior was unnecessary and that the proposed acquisition was inherently likely to lessen competition. Since we affirm the order of the Corporation and reverse the decision of the district court, the Corporation is entitled to seek divestiture by FWN of the Mutual stock. The order of the Corporation is affirmed. . The Court of Appeals noted that “[a]ppellant’s real attack is not against the suspension ‘order,’ which if final might have been subject to direct appellate review, but against the consequence resulting from the operation of a separate rule, which followed from the temporary suspension. It therefore seems highly unlikely that Holman would have been permitted to obtain review of the temporary suspension order immediately and directly in this court.”" }, { "docid": "22695767", "title": "", "text": "[to § 7] was a fear of what was considered to be a rising tide of economic concentration in the American economy.” This intense congressional concern with the trend toward concentration warrants, dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anti-competitive effects. See United States v. Koppers Co., 202 F. Supp. 437 (D. C. W. D. Pa. 1962). Such a test lightens the burden of proving illegality only with respect to mergers whose size makes them inherently suspect in light of Congress’ design in § 7 to prevent .-undue concentration. Furthermore, the test is fully consonant with economic theory. That “ [c] ompetition is likely to be greatest when there are many sellers, none of which has any significant market share,” is common ground among most economists, *and was undoubtedly a premise of congressional reasoning about the antimerger statute. The merger of appellees will result in a single bank’s controlling at least 30% of the commercial banking business in the four-county Philadelphia metropolitan area. Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat. Further, whereas presently the two largest banks in the area (First Pennsylvania and PNB.) control between them approximately 44% of the area’s commercial banking business, the two largest after the merger (PNB-Girard and First Pennsylvania) will control 59%. Plainly, we think, this increase of more than 33% in concentration must be regarded as significant. Our conclusion that these percentages raise an inference that the effect of the contemplated merger of appellees may be substantially to lessen competition is not an arbitrary one, although neither the terms of § 7 nor the" }, { "docid": "13454852", "title": "", "text": "the broader market. Id., at 457-58, 84 S.Ct. 1738. See, also, United States v. Phillipsburg Nat’l Bank & Trust Co., 399 U.S. 350, 360, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970). These dog foods — dry, semi-moist and canned, both economy and premium — are, in reality, all welcome in the same kennel. The Commission altogether justifiably, in fact and law, put them in a single market. The products were certainly in competition, particularly over the long term. Impairment of Competition The purchase of Perk by Liggett broke the law of Section 7, the Commission concluded, in that “the effect of such acquisition may be substantially to lessen competition.” We place our confirmation of this determination upon the clear showing of the concentration of economic power in Liggett when, in January 1969, it acquired for $29,500,000 all of the capital stock and holdings of Ready Foods, later changing its name to Perk Food Company. As will become manifest, this posed a potential for, and foretold a probable lessening of, competition in the dog food market. Brown Shoe Co. v. United States, 370 U.S. at 323, 82 S.Ct. 1502. That concentration and its tendency to increase comprise the touchstone for appraising the threat from a merger is squarely and trenchantly put by Mr. Justice Brennan in United States v. Philadelphia National Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963): “This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.” (Accent added.) The determination now in issue may be rested on this thesis alone. The adequacy of this measurement of proof was repeated in United States v." }, { "docid": "21894147", "title": "", "text": "can assess the legal consequences of a merger with some confidence, sound business planning is retarded... . So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation.” Id. at 362, 83 S.Ct. at 1741. Citing economic literature as a justification for this approach, the Court indicated that it was adopting a policy designed to prevent the development of oligopolistic markets and their consequent anticompetitive effects. Id. at 363 n.38, 83 S.Ct. at 1741 n.38. The Court thus laid down its general test: [A] merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects. Id. at 363, 83 S.Ct. at 1741. The Court then held that the merger at bar, which resulted in the defendant controlling at least 30% of the commercial banking market and which resulted in increasing the two largest firms concentration by one-third, from 44% to 59%, violated § 7. Id. at 364 — 65, 83 S.Ct. at 1742. In so doing, the Court noted that such a statistical increase exceeded the level of concentration, identified by current economic thinking as likely to produce oligopo-listic pricing. Finally, the Court held that the arguments of the defendant did not rebut the presumption of illegality raised by the government’s concentration statistics. These arguments were: bank officials testified that commercial banking competition was vigorous and would remain so after the merger; that 40 other banks remained in the Philadelphia area; that banking was a heavily regulated business; that through merger banks could follow their customers to the suburbs and retain their business; that increased capital would result in increased lending limits and allow the defendant to compete with New York banks for very large loans; and that a new large bank would stimulate the economic development of Philadelphia. Id. at 366-71, 83 S.Ct." }, { "docid": "8522588", "title": "", "text": "could have been acquired by Phillips and then expanded or renovated in the context of a primarily unilateral market entry. In sum, the court concludes that a unilateral market entry by Phillips into the California motor gasoline market would have been feasible. A Concentrated Market Consistent with its approach of “dispensing . . . with elaborate proof of market structure, market behavior, or probable anticompetitive effects” in § 7 cases, United States v. Philadelphia National Bank, supra, 374 U.S. at 363, 83 S.Ct. at 1741, the Supreme Court has relied increasingly on evidence of market concentration for “an inference that the effect of [an acquisition] may be substantially to lessen competition.” Id., at 365, 83 S.Ct. at 1742. As recognized by the Court, such an approach “is fully consonant with economic theory. That ‘ [competition is likely to be greatest when there are many sellers, none of which has any significant market share,’ is common ground among most economists.” Id., at 363, 83 S.Ct. at 1741. Such reliance reflects the “dominant theme” of § 7 as amended, “a fear of what was considered to be a rising tide of economic concentration in the American economy,” Brown Shoe Co. v. United States, supra, 370 U.S. at 315, 82 S.Ct. at 1518. This concern has been manifested in the prohibition of mergers which create “undue concentration,” United States v. Philadelphia National Bank, supra, 374 U.S. at 364, 83 S. Ct. 1715; further a trend toward concentration, United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966); United States v. Von’s Grocery Co., supra; Brown Shoe Co. v. United States, supra; or prevent the possibility of future market deconcentration, United States v. Aluminum Co. of America, supra. Testimony at trial indicated that there is a very close connection between the structure of a market and the behavior of the firms in the market. At the time of the Tidewater acquisition, the seven established major oil companies in the California market— Standard of California, Shell, Union, Richfield, Mobil, Texaco and Tidewater —accounted for 83% of California refining capacity" }, { "docid": "21047632", "title": "", "text": "3. Probable Effect on Competition Having defined the relevant product market as loose leaf chewing tobacco sold in the United States, the Court must next consider the likely effects of the proposed acquisition on competition within that market. See United States v. Marine Bancorporation, 418 U.S. 602, 618-23, 94 S.Ct. 2856, 41 L.Ed.2d 978 (1974). If the FTC can make a prima facie showing that the acquisition in this case will result in a significant market share and an undue increase in concentration within the loose leaf market, a presumption is established that it will substantially lessen competition. See United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). As the Supreme Court stated in Philadelphia National Bank: [A] merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anti-competitive effects. Id. at 363, 83 S.Ct. 1715. The Commission generally can establish a prima facie case by showing that the merged entity will have a significant percentage of the relevant market. See id. at 363, 83 S.Ct. 1715; Cardinal Health, 12 F.Supp.2d at 51. In Philadelphia National Bank, the Court specifically held that a post-merger market share of thirty percent triggers the presumption. 374 U.S. at 364, 83 S.Ct. 1715 (“Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.”). See, e.g., Cardinal Health, 12 F.Supp.2d at 52-53 (finding eighty percent triggers the presumption). Based on 1999 sales data, Swedish Match had a forty-two percent market share in dollar sales, Conwood had a thirty-three percent market share, National had an eighteen percent market share, Swisher had a six percent market share, and Fred Stoker had a one percent market share. The combined Swedish Match entity will have sixty percent of the" }, { "docid": "22970638", "title": "", "text": "1962, 370 U.S. 294, 315, 82 S.Ct. 1502, 1518, 8 L.Ed.2d 510, 530. To remedy this situation, Congress provided “authority for arresting mergers at a time when the trend to a lessening of competition . . . was still in its incipieney.” Id. at 317, 82 S.Ct. at 1520. Application of this standard “requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future. .” United States v. Philadelphia National Bank, 374 U.S. at 362, 83 S.Ct. at 1741. To require proof of an actual lessening of competition would subvert the congressional intent to restrain anti-competitive tendencies at the outset, rather than after the lessening of competition has become an accomplished fact. This approach seems especially justified in view of the extreme difficulty in restoring competition to markets which have become unduly concentrated as a result of mergers and acquisitions. Divestiture actions are an uncertain remedy. For this reason, the antitrust laws are intended to be preventive as well as curative. We conclude that there is no ground for requiring the Corporation to wait until there has been an actual lessening of competition. Furthermore, we believe that it was proper for the Board to rely on a comparison of percentage market shares as a basis for analyzing the anticompetitive effects of the acquisition. The Supreme Court addressed this point in Philadelphia National Bank and concluded that thé “intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anti-competitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in the market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.” 374 U.S. at 363, 83 S.Ct. at 1741. In its opinion letter, the Board stated that the acquisition of" }, { "docid": "21894146", "title": "", "text": "or difficulty of new entry into the market. Id. at 322, 82 S.Ct. at 1522, see Note, Horizontal Mergers After United States v. General Dynamics Corp., 92 Harv. L. Rev. 491, 495 (1978). Finally, the Court recognized a fundamental purpose of § 7 to be the “provision of authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency.” Brown Shoe v. United States, 370 U.S. at 317, 82 S.Ct. at 1520. Brown Shoe indicated that judges should make a broad-ranging inquiry into the likelihood that competition would be adversely affected by a merger. In its next major § 7 case, however, United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), the Court retreated from that approach. It instead relied on statistical evidence of concentration in the relevant market that resulted from the merger. The Court termed the economic data relevant to a broad-ranging inquiry “both complex and elusive,” and noted that “unless businessmen can assess the legal consequences of a merger with some confidence, sound business planning is retarded... . So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation.” Id. at 362, 83 S.Ct. at 1741. Citing economic literature as a justification for this approach, the Court indicated that it was adopting a policy designed to prevent the development of oligopolistic markets and their consequent anticompetitive effects. Id. at 363 n.38, 83 S.Ct. at 1741 n.38. The Court thus laid down its general test: [A] merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects. Id. at 363, 83 S.Ct. at 1741. The Court then held that the merger at bar, which resulted in the defendant controlling at least" }, { "docid": "6920108", "title": "", "text": "and Twenty Grand of supply and utility vessels lies somewhere between 31% and 10% in both the United States as a whole, which is not a relevant market, and the Gulf Coast, which is a relevant market. We are completely in the dark as to the defendants’ market share of the West Coast. However, in light of additional evidence introduced by the defendants, it is unnecessary for us to resolve this case solely on the basis that the government has failed to meet its burden of proof in establishing the defendants’ market shares. As noted above, the government’s efforts in this case were directed solely to establishing the defendants’ market shares. Relying mainly on Philadelphia National Bank, it claims that the combined market share of Tidewater and Twenty Grand and the elimination of competition between them constitute a prima facie violation of § 7. In that case the Court stated: “Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects. * * * The merger of' appellees will result in a single bank’s controlling at least 30'% of the commercial banking business * * *. Without attempting to specify the smallest market share which, would still be considered to threaten undue concentration, we are clear that 30% presents that threat.” (emphasis added) 374 U.S. at 363-364, 83 S.Ct. at 1742. Even if we take the present case in the light most favorable to the government and were to assume that Tidewater and Twenty Grand together own 31% of the relevant market, we would be faced with the same market share as in Philadelphia National Bank, yet we would be unable to draw the conclusion the Court there did because the defendants herein have introduced, in the language of the Supreme Court, “evidence clearly showing that the" }, { "docid": "21446452", "title": "", "text": "in a “section of the country.” Chicago Title’s stature in the nation and in Illinois, its relative volume of business, its territorial coverage, as heretofore detailed, its past company acquiring program, all indicate that the acquisition here assailed would fall within the ban of the Clayton Act. It is asserted by the Government that in ten out of the eleven states here involved, Chicago Title is accused of controlling ten per cent or more of the total title insurance. In Missouri and Wisconsin, the acquisition resulted in control of over sixty-five per cent of the title insurance business, eighteen per cent in Louisiana, thirty-nine per cent in Kansas and sixty-six per cent in Arkansas. In discussing the statutory test as to whether the effect of a merger “ ‘may be substantially to lessen competition’ ‘in any line of commerce in any section of the country,’ ” the court in United States v. Philadelphia National Bank, 374 U.S. 321, at 357, 83 S.Ct. 1715, at 1738, 10 L.Ed.2d 915, said: “The proper question to be asked in this case is not where the parties to the merger do business or even where they compete, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate.” It further said, at 362, 83 S.Ct. at 1741: “It requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future; this is what is meant when it is said that the amended § 7 was intended to arrest anticompetitive tendencies in their ‘incipiency.’ ” It continued, at 363, 83 S.Ct. at 1741: “This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market is so inherently likely to lessen competition substantially that it" }, { "docid": "21556877", "title": "", "text": "evidence that the defendants presented and concluded that the acquisition was not likely to substantially lessen competition. The government argues that the court erred by failing to require the defendants to make a “clear” showing. See Brief for Appellant at 13. The relevant precedents, however, suggest that this formulation overstates the defendants’ burden. We conclude that a “clear” showing is unnecessary, and we are satisfied that the district court required the defendants to produce sufficient evidence. The government’s “clear showing” language is by no means unsupported in the case law. In the mid-1960s, the Supreme Court construed section 7 to prohibit virtually any horizontal merger or acquisition. At the time, the Court envisioned an ideal market as one composed of many small competitors, each enjoying only a small market share; the more closely a given market approximated this ideal, the more competitive it was presumed to be. See United States v. Aluminum Co. of Am., 377 U.S. 271, 280, 84 S.Ct. 1283, 1289, 12 L.Ed.2d 314 (1964) (“It is the basic premise of [section 7] that competition will be most vital ‘when there are many sellers, none of which has any significant market share.’ ”) (quoting United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963)). This perspective animated a series of decisions in which the Court stated that a section 7 defendant’s market share measures its market power, that statistics alone establish a prima facie case, and that a defendant carries a heavy burden in seeking to rebut the presumption established by such a prima facie case. The Court most clearly articulated this approach in Philadelphia Bank: Th[e] intense congressional concern with the trend toward concentration [underlying section 7] warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be" }, { "docid": "21556878", "title": "", "text": "that competition will be most vital ‘when there are many sellers, none of which has any significant market share.’ ”) (quoting United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963)). This perspective animated a series of decisions in which the Court stated that a section 7 defendant’s market share measures its market power, that statistics alone establish a prima facie case, and that a defendant carries a heavy burden in seeking to rebut the presumption established by such a prima facie case. The Court most clearly articulated this approach in Philadelphia Bank: Th[e] intense congressional concern with the trend toward concentration [underlying section 7] warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects. 374 U.S. at 363, 83 S.Ct. at 1741 (emphasis added). Philadelphia Bank involved a proposed merger that would have created a bank commanding over 30% of a highly concentrated market. While acknowledging that the banks could in principle rebut the government’s prima facie case, the Court found unpersuasive the banks’ evidence challenging the alleged anticom-petitive effect of the merger. See id. at 366-72, 83 S.Ct. at 1743-46. In United States v. Von’s Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 (1966), the Court further emphasized the weight of a defendant’s burden. Despite evidence that a post-merger company had only a 7.5% share of the Los Angeles retail grocery market, the Court, citing anticom-petitive “trends” in that market, ordered the merger undone. The Court summarily dismissed the defendants’ contention that the post-merger market was highly competitive. Id. at 277-78, 86 S.Ct. at 1482. Noting that the market was “marked at the same time by" }, { "docid": "8522532", "title": "", "text": "stated: “Clearly, this is not the kind of question which is susceptive of a ready and precise answer in most cases. It requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future; this is what is meant when it is said that the amended § 7 was intended to arrest anticompetitive tendencies in their ‘incipiency’ . . . yet the relevant economic data are both complex and elusive. ... So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation.” 374 U.S. at 362, 83 S. Ct. at 1741. Because of concern with high levels of concentration in Philadelphia National Bank, the Supreme Court concluded that objective economic facts must be emphasized : “This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. . . . Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.” 374 U. S. at 363, 83 S.Ct. at 1741. In Penn-Olin, supra, decided in 1964, the Court stated, “We reiterate that it is impossible to demonstrate the precise competitive effects of the elimination of either Pennsalt or Olin as a potential competitor.” 378 U.S. at 176, 84 S.Ct. at 1720. In 1966, in Von’s Grocery, supra, the Court found that while concentration levels in the market were still relatively low, there was a trend toward concentration, and the two merging firms, which were the third and sixth largest in the market, together accounted for 7.5% of the market. It held that “these facts alone are enough to cause us to conclude contrary to the District Court that the Von’s-Shopping Bag" }, { "docid": "22971336", "title": "", "text": "In prior decisions involving horizontal mergers between competitors, this Court has found prima facie violations of § 7 of the Clayton Act from aggregate statistics of the sort relied on by the United States in this case. In Brown Shoe Co. v. United States, 370 U. S. 294, the Court reviewed the legislative history of the most recent amendments to the Act and found that “[t]he dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of economic concentration in the American economy.” Id., at 315. A year later, in United States v. Philadelphia National Bank, 374 U. S. 321, the Court clarified the relevance of a statistical demonstration of concentration in a particular industry and of the effects thereupon of a merger or acquisition with the following language: “This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.” Id., at 363. See also United States v. Continental Can Co., 378 U. S. 441, 458; United States v. Von’s Grocery Co., 384 U. S., at 277; United States v. Pabst Brewing Co., 384 U. S. 546, 550-552. The effect of adopting this approach to a determination of a “substantial” lessening of competition is to allow the Government to rest its case on a showing of even small increases of market share or market concentration in those industries or markets where concentration is already great or has been recently increasing, since “if concentration is already great, the importance of preventing even slight increases in concentration and so preserving the possibility of eventual deconcentration is correspondingly great.” United States v. Aluminum" }, { "docid": "21047633", "title": "", "text": "the merger is not likely to have such anti-competitive effects. Id. at 363, 83 S.Ct. 1715. The Commission generally can establish a prima facie case by showing that the merged entity will have a significant percentage of the relevant market. See id. at 363, 83 S.Ct. 1715; Cardinal Health, 12 F.Supp.2d at 51. In Philadelphia National Bank, the Court specifically held that a post-merger market share of thirty percent triggers the presumption. 374 U.S. at 364, 83 S.Ct. 1715 (“Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.”). See, e.g., Cardinal Health, 12 F.Supp.2d at 52-53 (finding eighty percent triggers the presumption). Based on 1999 sales data, Swedish Match had a forty-two percent market share in dollar sales, Conwood had a thirty-three percent market share, National had an eighteen percent market share, Swisher had a six percent market share, and Fred Stoker had a one percent market share. The combined Swedish Match entity will have sixty percent of the loose leaf market after the merger, giving it nearly double its closest competitor, Conwood. And the top two firms left in the market—Swedish Match and Conwood—will have ninety percent of the market. In addition to market share, courts examine market concentration and its increase as a result of the proposed acquisition. See Philadelphia Nat’l Bank, 374 U.S. at 363, 83 S.Ct. 1715; see also Cardinal Health, 12 F.Supp.2d at 53; Staples, 970 F.Supp. at 1081. If the acquisition is allowed in this case, the level of concentration would increase significantly under the Herfindahl-Hirschman Index (“HHI”). According to the Merger Guidelines, any market with an HHI over 1800 is highly-concentrated. See FTC v. PPG Indus., Inc., 798 F.2d 1500, 1503 (D.C.Cir.1986) (citing the Merger Guidelines). And unless mitigated by other factors which lead to the conclusion that the merger is not likely to lessen competition, an increase in the HHI in excess of fifty points in a post-merger, highly concentrated market may raise significant competitive concerns. Although the Supreme Court has established no fixed threshold at" }, { "docid": "6920109", "title": "", "text": "in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects. * * * The merger of' appellees will result in a single bank’s controlling at least 30'% of the commercial banking business * * *. Without attempting to specify the smallest market share which, would still be considered to threaten undue concentration, we are clear that 30% presents that threat.” (emphasis added) 374 U.S. at 363-364, 83 S.Ct. at 1742. Even if we take the present case in the light most favorable to the government and were to assume that Tidewater and Twenty Grand together own 31% of the relevant market, we would be faced with the same market share as in Philadelphia National Bank, yet we would be unable to draw the conclusion the Court there did because the defendants herein have introduced, in the language of the Supreme Court, “evidence clearly showing that the merger is not likely to have [any] anti-competitive effects.” In measuring the anticompetitive effect of a merger, we must examine its effect on the competitors as well as the customers of the merged companies. United States v. Bethlehem Steel Corp., 168 F.Supp. 576 at 588, cited with approval in United States v. Philadelphia Nat’l Bank, 374 U.S. at 367, n. 43, 83 S.Ct. 1715. We examine first the defendants’ competitors in the offshore marine transportation industry. The offshore marine transportation industry is predominantly composed of small firms. Over one hundred, and possibly several hundred, small firms exist which have less than five supply and utility boats available for charter. In addition to this vast number of small competitors, a number of larger chartering firms engage in competition with Tidewater and Twenty Grand. Based on the government’s Exhibit 2B, as supplemented by the defendants’ Exhibit A and other evidence introduced by the defendants, we find that at least 14 firms, excluding Tidewater and Twenty Grand, have between at least 23 and 5 supply and utility boats" } ]

[ { "docid": "5973579", "title": "", "text": "interest in his position as corporal. We look to state law to measure Moore’s property claim. The Tampa Code could not be clearer that a corporal serves in that special capacity only at the pleasure of the chief of police and the mayor. Although Moore alleged that corporal assignments were more or less permanent—somewhat akin to the de facto tenure alleged by the plaintiff in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)—personnel records reveal that on other occasions the chief of police reassigned corporals to regular patrolman’s duties. Moore cites no state law that gives a patrolman a property interest in the position of corporal, and assignment to that position had no effect on Moore’s civil service status. We view Moore’s position as corporal as no different from that held by a probationary employee: no reasonable expectation of continuous employment as a corporal exists that could give rise to a property interest. To accord Moore a due process right to a hearing before reassignment would require the Tampa Police Department to grant hearings before assigning patrolmen to traffic duty or to the radio room. We see no justification for such a requirement. Neither did Moore’s reassignment deny any liberty interest qualifying for due process protection. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court ruled that defamation by a state official alone did not deprive an individual of a liberty interest protected under the due process clause of the fourteenth amendment so as to give rise to a 42 U.S.C. § 1983 action. To establish a liberty interest sufficient to implicate fourteenth amendment safeguards, the individual must be not only stigmatized but also stigmatized in connection with a denial of a right or status previously recognized under state law. See Paul, supra at 711-12, 96 S.Ct. 1155. Under this “stigma-plus” test, see Danno v. Peterson, 421 F.Supp. 950, 954 (N.D.Ill.1976), we must determine whether the allegations of Moore’s failure to respond to the call for aid of another officer, together with his assignment to patrolman’s duties," } ]

[ { "docid": "6370085", "title": "", "text": "of the handbook be for cause. In reaching this conclusion, we address two final issues as they pertain to contracts, employee manuals, and property interests in employment under Tennessee law. Both relate to our prior decision in City of Niota. There, the Tennessee city of Niota’s board of commissioners voted to terminate the employment of two police officers. See 214 F.3d at 719-20. The officers appealed, arguing that a previous employee-termination rule promulgated by the board created an interest in continued employment. See id. at 720. We disagreed and held that the termination rule did not convey a property interest in their continued employment. See id. at 721-22. The facts here distinguish this case from City of Niota and compel a different conclusion. As an initial difference, we held in City of Niota that the termination rule at issue did not create a contract between the city and its police officers. See id. at 721. In doing so, we pointed to the “permissive” language of the rule, specifically that “the board of commissioners ‘may’ fire a[n] employee.” Id. We then contrasted this language with the “cases in Tennessee courts [that] have found an employment contract to exist” — those where “the employee handbook contained the mandatory terms ‘shall’ and ‘will.’ ” Id. In this case, by contrast, we have already held that the language at issue did convert the employee manual to a contract. And we have already explained that this language included terms “shall” and “will” in the context of termination. Another difference centers on Tennessee’s term-of-years presumption. Tennessee courts presume that “employment for an indefinite term may be terminated at any time ... without cause.” Woods, 345 S.W.3d at 909. The manner in which we relied on this presumption in City of Niota does not apply here. There, we rejected “plaintiffs’ argument that the board’s rule on termination create[d] an employment contract,” and then we explained that the plaintiffs still failed to “establish that they had a property interest in continued employment because this contract does not provide a definite term of employment.” 214 F.3d at 721. This" }, { "docid": "2421633", "title": "", "text": "allegations quickly became part of the public record and have been conveyed to at least one other law enforcement department.” Doc. 17 at 19 (citation omitted). Plaintiff claims he was entitled to a name-clearing hearing, which the Village did not provide to him. „ Defendants argue that if there is no defamation claim because of qualified privilege, a claim for infringement of a liberty interest also cannot survive. The Fourteenth Amendment to the United States Constitution protects liberty interests such as a person’s reputation, good name, honor, and integrity. Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). Plaintiff clearly possessed a liberty interest in his reputation. A plaintiff cannot establish a due process violation, however, through defamation alone. Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir.2002) (citing Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). A “nontenured employee [who] shows that he [or she] has been stigmatized by the voluntary, pubhc dissemination of false information in the course of a decision to terminate his [or her] employment” is entitled to an opportunity to clear his or her name. Chilingirian, 882 F.2d at 205. The Sixth Circuit requires a plaintiff to establish five elements to demonstrate deprivation of a liberty interest. “First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment.” Brown v. City of Niota, 214 F.3d 718, 722 (6th Cir.2000) (citing Ludwig, 123 F.3d at 410). “Second, a plaintiff is not deprived of his liberty interest when - the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance.” Brown, 214 F.3d at 722-23 (citing Ludwig, 123 F.3d at 410). A plaintiff must prove the employer made a statement that might seriously damage the employee’s reputation in the community or might impose a stigma precluding the employee from other employment. Ludwig, 123 F.3d at 410 (citing Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). A plaintiff must show a “moral stigma such as immorality or dishonesty to show a deprivation of liberty.” Ludwig, 123" }, { "docid": "13230074", "title": "", "text": "require us to deviate from the general principle that contracts for permanent employment are terminable at the will of either party. 408 Mich. at 596, 292 N.W.2d 880 (citing Lynas v. Maxwell Farms, 279 Mich. 684, 273 N.W. 315 (1937)). Finally, unlike Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), in which a de facto tenure system implicitly gave a teacher a legitimate claim of entitlement to tenure notwithstanding the absence of explicit contractual tenure provisions, Chilingirian can point to no circumstances or city practices indicative of a policy requiring cause prior to termination of the city’s administrative officers. For these reasons, we conclude that summary judgment for the defendants was proper on this count. III. We next consider the district court’s disposition of Chilingirian’s allegations that, in terminating him, the defendants deprived him of a liberty interest for which he was denied an adequate name-clearing hearing. We note that a person’s reputation, good name, honor, and integrity are among the liberty interests protected by the due process clause of the fourteenth amendment. Roth, 408 U.S. at 573, 92 S.Ct. at 2707. Any deprivation of those interests, therefore, must be accompanied by notice and an opportunity to be heard to refute any charges against that person. Id.; see also Burkhart v. Randles, 764 F.2d 1196, 1201 (6th Cir.1985). Thus, when a “nontenured employee shows he has been stigmatized by the voluntary, public dissemination of false information in the course of a decision to terminate his employment, the employer is required to afford him an opportunity to clear his name.” Id. (citations omitted). A name-clearing hearing is required only if an employer creates a false and defamatory impression about a particular employee in connection with his termination. Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1976). The district court granted the defendants summary judgment on Chilingirian’s liberty deprivation and name-clearing claims, noting that if Chilingirian did suffer a liberty deprivation, it was accompanied by the requisite due process by virtue of his December 10, 1987, hearing before the council. Rejecting Chilingirian’s protestations" }, { "docid": "11113680", "title": "", "text": "liberty interest when the injury occurs in connection with an employee’s termination. See Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). When a deprivation of a liberty interest of this kind occurs, the employee must be afforded notice and an opportunity to be heard to refute the charges disseminated against him. See Chilingirian, 882 F.2d at 205 (citing Roth, 408 U.S. at 573, 92 S.Ct. at 2707). “Thus, when a ‘nontenured employee shows he has been stigmatized by the voluntary, public dissemination of false information in the course of a decision to terminate his employment, the employer is required to afford him an opportunity to clear his name.’” Id. A liberty interest in one’s reputation is implicated, therefore, only when five elements are satisfied. First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment. See Paul v. Davis, 424 U.S. 693, 709-10, 96 S.Ct. 1155, 1164-65, 47 L.Ed.2d 405 (1976)(injury to reputation by itself is not a liberty interest protected under the Fourteenth Amendment). Second, a plaintiff is not deprived of his liberty interest when the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Chilingirian v. Boris, 882 F.2d 200, 205-06 (6th Cir.1989); Lake Michigan College Fed’n of Teachers v. Lake Michigan Community College, 518 F.2d 1091, 1096-97 (6th Cir.1975). “A charge that merely makes a plaintiff less attractive to other employers but leaves open a definite range of opportunity does not constitute a liberty deprivation.” Chilingirian, 882 F.2d at 205-06 n. 8. Rather, to implicate the Due Process Clause, the employer must have made a statement in the course of the employee’s discharge “that might seriously damage his standing and associations in his community” or that might impose “on him a stigma or other disability that [would] foreclose[ ] his freedom to take advantage of other employment opportunities.” Roth, 408 U.S. at 573, 92 S.Ct. at" }, { "docid": "11113679", "title": "", "text": "in the personnel policies which discusses suspensions gives the President authority to suspend coaches for no more than 30 days and makes no contractual obligation to provide a suspended employee with notice or pay in lieu of notice during the suspension. As the documents concerning plaintiffs employment with the University are the only source from which plaintiff in this case could derive a property interest in continued pay during a suspension and no such contractual right is provided, we hold that plaintiff has failed to establish that he had a property interest in continued pay and benefits during his suspension. 2. Liberty Interest Plaintiffs second assignment of error alleges that the public dissemination of information concerning his termination injured his reputation and therefore constituted a depri vation of a liberty interest under the Due Process Clause. Because he was deprived of a liberty interest, plaintiff claims he was entitled to a name-clearing hearing which the defendants did not provide. An injury to a person’s reputation, good name, honor, or integrity constitutes the deprivation of a liberty interest when the injury occurs in connection with an employee’s termination. See Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). When a deprivation of a liberty interest of this kind occurs, the employee must be afforded notice and an opportunity to be heard to refute the charges disseminated against him. See Chilingirian, 882 F.2d at 205 (citing Roth, 408 U.S. at 573, 92 S.Ct. at 2707). “Thus, when a ‘nontenured employee shows he has been stigmatized by the voluntary, public dissemination of false information in the course of a decision to terminate his employment, the employer is required to afford him an opportunity to clear his name.’” Id. A liberty interest in one’s reputation is implicated, therefore, only when five elements are satisfied. First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment. See Paul v. Davis, 424 U.S. 693, 709-10, 96 S.Ct. 1155, 1164-65, 47 L.Ed.2d 405 (1976)(injury to reputation" }, { "docid": "16431089", "title": "", "text": "Tennessee courts have held that “[t]he law is well established in this state that a contract for employment for an indefinite term is a contract at will and can be terminated by either party at any time without cause.” Bringle v. Methodist Hosp., 701 S.W.2d 622, 625 (Tenn.Ct.App. 1985); see also Graves v. Anchor Wire Corp., 692 S.W.2d 420, 422 (Tenn.Ct.App. 1985). While the Reed court found that the employee handbook created a contract and restricted the employer from terminating the employee without just cause, the handbook also created a contract for a definite time period. The employee handbook in Reed provided that the employment relationship would be for a term of one year to be renewed annually unless the employee voluntarily resigned or was terminated for just cause. 4 S.W.3d at 688. Because the plaintiffs have pointed to no rule or regulation that defines the duration of the contractual relationship between the city and its employees they have not rebutted the presumption that they were employees at will. The plaintiffs did not have a protected property interest in their continued employment with the city; therefore, we affirm the district court’s decision to grant defendant’s motion for summary judgment on plaintiffs’ property interest claim. B. Liberty Interest Plaintiffs also argue that they had a liberty interest that was violated by the defendants during the January 12, 1998, board meeting. “[A] person’s reputation, good name, honor, and integrity are among the liberty interests protected by the due process clause of the fourteenth amendment.” Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). A deprivation of any of those interests “must be accompanied by notice and an opportunity to be heard to refute any charges against that person.” Id. In Ludwig, this Circuit identified five elements that must be satisfied to establish that a plaintiff was deprived of a liberty interest entitling the plaintiff to a name-clearing hearing: First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment.... Second, a plaintiff is not deprived of his liberty interest when the employer has alleged merely improper or inadequate" }, { "docid": "2421632", "title": "", "text": "2001) (“If the two parties had a mutual understanding Gratsch had the right to continue working as a special deputy absent a pre-termi-nation hearing, then he was deprived of procedural due process when his commission was terminated without a hearing.”). The undisputed facts establish that plaintiff was terminated without a hearing. See supra Section I.C. Because the parties agree that plaintiff was terminated without any sort of hearing, and because I find that plaintiff had a property interest in his employment based on the parties’ agreement to be bound by the Manual’s provisions, I find that plaintiff was deprived of a property interest without due process of law. Plaintiffs motion for summary judgment shall be, therefore, granted on the § 1983 claim for deprivation of his property rights under the United States Constitution. B. Deprivation of a Liberty Interest in Reputation Plaintiff claims defendants deprived him of a liberty interest in his reputation. Plaintiff contends, “Mayor Blatt fired Plaintiff amidst charges of ‘theft of village resources’ and committing an ‘official lie.’ ... These patently false allegations quickly became part of the public record and have been conveyed to at least one other law enforcement department.” Doc. 17 at 19 (citation omitted). Plaintiff claims he was entitled to a name-clearing hearing, which the Village did not provide to him. „ Defendants argue that if there is no defamation claim because of qualified privilege, a claim for infringement of a liberty interest also cannot survive. The Fourteenth Amendment to the United States Constitution protects liberty interests such as a person’s reputation, good name, honor, and integrity. Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). Plaintiff clearly possessed a liberty interest in his reputation. A plaintiff cannot establish a due process violation, however, through defamation alone. Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir.2002) (citing Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). A “nontenured employee [who] shows that he [or she] has been stigmatized by the voluntary, pubhc dissemination of false information in the course of a decision to terminate his [or her] employment”" }, { "docid": "6370076", "title": "", "text": "only the first step of this inquiry in, concluding that Freeze and Colvin’s due process claim failed. We start at the same place and, according to the first step, ask whether Freeze and Colvin have established that they had a protected property interest in their continued employment (which would thus entitle them to due process protections). See Mitchell, 375 F.3d at 480; Brown v. City of Niota, 214 F.3d 718, 720 (6th Cir.2000); Gregory v. Hunt, 24 F.3d 781, 785 (6th Cir.1994) (“An at-will public employee does not have a property interest in continued employment unless it can be shown that the employee had a reasonable expectation that termination would be only for good cause.”). A. We look to state law to determine whether Freeze and Colvin had a reasonable expectation that their termination would be only for good cause. See Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The law in Tennessee operates under a broad presumption that employees are at will and, by default, lack a property right in their continued employment. England v. Andrews, No. 2:05-0008, 2005 WL 2209542, at *7 (M.D.Tenn. Sept. 8, 2005); see also Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555 (Tenn.1988) (“The doctrine of employment at will has long been recognized in [Tennessee], with the concomitant right of either party to terminate such a relationship with or without cause.”). Tennessee courts read this presumption to mean that employees cannot claim an interest in continued employment unless they first prove that a contract governed the terms of employment. See Woods v. Metro. Dev. & Hous. Auth. Bd. of Comm’rs, 345 S.W.3d 903, 909 (Tenn.Ct.App.2011). Freeze and Colvin appeal to this latter point in an effort to save their due process claim. They base their property interest on the Police Resolution that the Board passed in January of 2000. According to their argument, this Resolution created a contract that changed their status from at-will employees to those with a" }, { "docid": "16875552", "title": "", "text": "a clearly established constitutional right.” Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Accordingly, we begin our inquiry by analyzing whether Wood’s procedural due process claims allege the violation of one or more clearly established constitutional rights. “The Fourteenth Amendment protects against the deprivation of property or liberty without due process.” Brady v. Gebbie, 859 F.2d 1543, 1547 (9th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989). Wood argues that Oldfield’s actions in relation to the regulation of the Bank deprived him of both a liberty and property interest. We must determine whether these alleged deprivations concern a clearly established constitutional right. 1. Property interest Wood bases his claim of a protected property interest in his continued employment with Liberty on two independent sources. First, he argues that the statutory procedures authorizing the Supervisor to remove bank officers only for certain delineated causes create a property interest. Under Wash.Rev.Code § 30.12.040-042, the Supervisor is required to provide written notice of his intention to remove the officer, setting a hearing date no sooner than ten days later. Additionally, § 30.04.470 provides that any party may obtain review of the result of these procedures in state court. And second, the appellant contends that his contract with the Bank created such an interest. Under that contract, he could be terminated either at will with ninety days notice, or immediately for cause. A person “only has a constitutionally protected property interest in continued employment ... if he has a reasonable expectation or a ‘legitimate claim of entitlement’ to it, rather than a mere ‘unilateral expectation.’ ” Brady, 859 F.2d at 1547-48 (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). To determine whether an entitlement exists, a court looks to “existing rules and understandings that stem from an outside source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. But while the underlying right is created by state law, “federal constitutional law determines whether that interest rises to the level of" }, { "docid": "14125081", "title": "", "text": "protected by the due process clause of the fourteenth amendment.” Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). However, defamation alone is not enough to invoke due process concerns. Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Some alteration of a right or status “previously recognized by state law,” such as employment, must accompany the damage to reputation. Id. at 711-12, 96 S.Ct. 1155; see also Ferencz v. Hairston, 119 F.3d 1244, 1249 (6th Cir. 1997) (holding that as publication of defamatory comments complained of was not accompanied by the deprivation of any tangible interest such as continued em ployment, the publication did not deprive plaintiffs of a liberty interest); Mertik, 983 F.2d at 1361 (explaining that when a plaintiff alleges “loss, infringement or denial of a government benefit previously enjoyed ... coupled with communications by government officials, having a stigmatizing effect, a claim for deprivation of liberty without due process of law will lie”). Consequently, when a “nontenured employee shows that he has been stigmatized by the voluntary, public dissemination of false information in the course of a decision to terminate his employment, the employer is required to afford him an opportunity to clear his name.” Chilingirian, 882 F.2d at 205; see also Roth, 408 U.S. at 573, 92 S.Ct. 2701 (explaining that “where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential”); Christian v. Belcher, 888 F.2d 410, 417 (6th Cir.1989) (explaining that due process concerns are implicated where public employer voluntarily disseminates false information in the course of a decision to terminate an employee). A name-clearing hearing is required only if the employer creates a false and defamatory impression about a particular employee in connection with his termination. Id. This Court has identified five factors that a plaintiff must show in order to establish that he was deprived of a liberty interest and entitled to a name-clearing hearing. First, the stigmatizing statements must be made in conjunction with the plaintiffs" }, { "docid": "16431090", "title": "", "text": "protected property interest in their continued employment with the city; therefore, we affirm the district court’s decision to grant defendant’s motion for summary judgment on plaintiffs’ property interest claim. B. Liberty Interest Plaintiffs also argue that they had a liberty interest that was violated by the defendants during the January 12, 1998, board meeting. “[A] person’s reputation, good name, honor, and integrity are among the liberty interests protected by the due process clause of the fourteenth amendment.” Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). A deprivation of any of those interests “must be accompanied by notice and an opportunity to be heard to refute any charges against that person.” Id. In Ludwig, this Circuit identified five elements that must be satisfied to establish that a plaintiff was deprived of a liberty interest entitling the plaintiff to a name-clearing hearing: First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment.... Second, a plaintiff is not deprived of his liberty interest when the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance.... Third, the stigmatizing statements or charges must be made public. Fourth, the plaintiff must claim that the charges made against him were false. Lastly, the public dissemination must have been voluntary. 123 F.3d at 410 (internal citations omitted). Once a plaintiff-has established the existence of all five elements, he is entitled to a name-clearing hearing if he requests one. Id. Both plaintiffs argue that statements made by the commissioners during the board meeting infringed on their liberty interests in their reputations. In particular, plaintiff Brown points to statements regarding the shoving incident with Mike Cardin and the discussion of other undisclosed prior incidents, while plaintiff Anderson directs our attention ,to the board’s statement he was involved in a conflict of interest. Plaintiffs contend that these statements “create[d] a false and defamatory impression ... in connection with [their] termination.” Chilingirian, 882 F.2d at 205. Assuming that the board’s comments were stigmatizing and that the plaintiffs were entitled to a name-clearing hearing had one been denied, we still do not" }, { "docid": "5910001", "title": "", "text": "that secure certain benefits and that support claims of entitlement to those benefits. “A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.” Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) [footnote omitted]. A public employee who is entitled under state law to employment unless there is good cause for dismissal has a constitutionally protected property interest in continued employment. Cleveland Board of Education v. Loudermill, — U.S. —,— — —, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985); Hughes v. Whitmer, 714 F.2d 1407, 1414 (8th Cir.1983). Under state law, Kansas City police officers who have served at least six months probationary service are appointed to the police force and are subject to discharge or removal only for cause. Mo.Rev.Stat. § 84.600. Therefore, a police officer has a property interest in continued employment. A commissioned police officer’s right to continued employment includes the right to the office and its emoluments such as rank and compensation. Moore v. Damos, 489 S.W.2d 465, 468 (Mo.App.1972); accord Pfefer v. Board of Police Commissioners, 654 S.W.2d 124, 127 (Mo.App. 1983); Heidebur v. Parker, 505 S.W.2d 440, 444 (Mo.App.1974). A police officer who is suspended for three days loses compensation and other emoluments of the office for the period of suspension. Therefore, involuntary temporary suspension deprives a police officer of a constitutionally protected property interest. As long as a property deprivation is not de minimis, its gravity is irrelevant to a determination of whether due process should be afforded. Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 757, 42 L.Ed.2d 725 (1975). The length and consequent severity of a deprivation should be considered in determining what procedural protections are constitutionally required, not in determining whether the deprivation entitles plaintiff to due process. Id. Plaintiff’s three-day suspension was not de minimus because he was deprived of compensation for the period of the suspension. Vorbeck v. McNeal, 560 S.W.2d 245, 250" }, { "docid": "5910000", "title": "", "text": "a liberty or property interest protected by the Fourteenth Amendment; and 2) if so, did the manner in which the discipline was imposed include constitutionally mandated procedural protections. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Suspension deprived plaintiff of a constitutionally protected property interest Plaintiff asserts that he has been deprived of a property interest in the loss of wages and benefits during the period of suspension. In Roth, 408 U.S. at 577, 92 S.Ct. at 2709, the Supreme Court stated: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it____ Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. “A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.” Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) [footnote omitted]. A public employee who is entitled under state law to employment unless there is good cause for dismissal has a constitutionally protected property interest in continued employment. Cleveland Board of Education v. Loudermill, — U.S. —,— — —, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985); Hughes v. Whitmer, 714 F.2d 1407, 1414 (8th Cir.1983). Under state law, Kansas City police officers who have served at least six months probationary service are appointed to the police force and are subject to discharge or removal only for cause. Mo.Rev.Stat. § 84.600. Therefore, a police officer has a property interest in continued employment. A commissioned police officer’s right to continued employment" }, { "docid": "2421634", "title": "", "text": "is entitled to an opportunity to clear his or her name. Chilingirian, 882 F.2d at 205. The Sixth Circuit requires a plaintiff to establish five elements to demonstrate deprivation of a liberty interest. “First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment.” Brown v. City of Niota, 214 F.3d 718, 722 (6th Cir.2000) (citing Ludwig, 123 F.3d at 410). “Second, a plaintiff is not deprived of his liberty interest when - the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance.” Brown, 214 F.3d at 722-23 (citing Ludwig, 123 F.3d at 410). A plaintiff must prove the employer made a statement that might seriously damage the employee’s reputation in the community or might impose a stigma precluding the employee from other employment. Ludwig, 123 F.3d at 410 (citing Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). A plaintiff must show a “moral stigma such as immorality or dishonesty to show a deprivation of liberty.” Ludwig, 123 F.3d at 410 (citing Roth, 408 U.S. at 573, 92 S.Ct. 2701). “Third, the stigmatizing statements or charges must be made pubhc. Fourth, the plaintiff must claim that the charges made against him were false. Lastly, the public dissemination must have been voluntary.” Brown, 214 F.3d at 728 (citing Ludwig, 123 F.3d at 410). Before a plaintiff may assert deprivation of a liberty interest, he or she must, however, show that he or she requested a name-clearing hearing and was denied a hearing. Quinn, 293 F.3d at 322 (citing Brown, 214 F.3d at 723; Ludwig, 123 F.3d at 410-11). There is no assertion in the complaint or evidence in the record that plaintiff asked for a name-clearing hearing. Absent such a request, plaintiff cannot prevail on this claim. Id. CONCLUSION It is, therefore, ORDERED THAT 1. Defendants’ motion for summary judgment be, and hereby is, denied, and plaintiffs motion for summary judgment be, and hereby is, granted as to the breach of contract claim and the § 1983 claim for deprivation of a property interest;" }, { "docid": "13230067", "title": "", "text": "is created by 42 U.S.C. § 1983 for the deprivation of constitutionally protected liberty and property interests. Ramsey v. Board of Educ., 844 F.2d 1268, 1271 (6th Cir.1988). Chilingirian first claims that the district court erred in concluding that he lacked a constitutionally protected property interest in continued employment as the city attorney. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court indicated that procedural due process requirements apply to deprivation of liberty and property interests encompassed by the fourteenth amendment and that, when those interests are implicated, “the right to some kind of hearing is paramount.” Id. at 569-70, 92 S.Ct. at 2705 (footnote omitted). Here, the district court correctly recognized that property interests are created and defined by sources independent of the Constitution such as state law. Id. at 577, 92 S.Ct. at 2709; see also Ramsey, 844 F.2d at 1271. Moreover, a public employee does not have a property interest in continued employment when his position is held at the will and pleasure of his superiors and when he has not been promised that he will only be terminated for good cause. See generally Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Lake Michigan College Fed’n of Teachers v. Lake Michigan Community College, 518 F.2d 1091 (6th Cir.1975), cert. denied, 427 U.S. 904, 96 S.Ct. 3189, 49 L.Ed.2d 1197 (1976). In determining whether Chilingiri-an enjoyed a constitutionally protected property right to continued employment and a concomittant right to a pretermination hearing, the district court examined the city charter. Section 4.6, in pertinent part, provides: The administrative officers of the city shall be the Clerk, Treasurer, Assessor, Attorney, Chief of Police, and Fire Chief, and such additional administrative officers as may be created by ordinance. The Council may combine any administrative offices in any manner it deems necessary or advisable for the proper and efficient operation of the city. Except as hereinbefore provided, all administrative officers of the city shall be appointed by the Council for an indefinite period, shall serve at the" }, { "docid": "14125082", "title": "", "text": "voluntary, public dissemination of false information in the course of a decision to terminate his employment, the employer is required to afford him an opportunity to clear his name.” Chilingirian, 882 F.2d at 205; see also Roth, 408 U.S. at 573, 92 S.Ct. 2701 (explaining that “where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential”); Christian v. Belcher, 888 F.2d 410, 417 (6th Cir.1989) (explaining that due process concerns are implicated where public employer voluntarily disseminates false information in the course of a decision to terminate an employee). A name-clearing hearing is required only if the employer creates a false and defamatory impression about a particular employee in connection with his termination. Id. This Court has identified five factors that a plaintiff must show in order to establish that he was deprived of a liberty interest and entitled to a name-clearing hearing. First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment.... Second, a plaintiff is not deprived of his liberty interest when the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance.... Third, the stigmatizing statements or charges must be made public. Fourth, the plaintiff must claim that the charges made against him were false. Lastly, the public dissemination must have been voluntary. Brown v. City of Niota, 214 F.3d 718, 722-23 (6th Cir.2000) (citing Ludwig v. Bd. of Trustees, 123 F.3d 404, 410 (6th Cir.1997)). “Once a plaintiff has established the existence of all five elements, he is entitled to a name-clearing hearing if he requests one.” Brown, 214 F.3d at 723 (citing Ludwig, 123 F.3d at 410). It is the denial of the name-clearing hearing that causes the deprivation of the liberty interest without due process. Brown, 214 F.3d at 723. Thus, the public employer deprives an employee of his liberty interest without due process, if upon request for a name-clearing hearing, the employee is denied. Id.; see also Baden v. Koch, 799 F.2d 825, 830" }, { "docid": "14738497", "title": "", "text": "Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a plaintiff claiming due process protection under the Fourteenth Amendment must possess a “property” or “liberty” interest that is somehow jeopardized by governmental action, necessitating a pre- or post-deprivation hearing as a safeguard. See Roth, 408 U.S. at 571, 92 S.Ct. at 2706. Roth held that two kinds of liberty concerns trigger due process rights in the public employment context: (i) the employee’s interest in good name and reputation; and (ii) the employee’s interest in being able to seek other employment opportunities. See id. at 573-74, 92 S.Ct. at 2707. Dobosz has alleged that Walsh’s acts and statements were injurious to his reputation. However, under Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), government acts defaming an individual implicate a liberty interest only where the individual suffers a related alteration of his legal status or deprivation of a right recognized under state law. See id. at 710-12, 96 S.Ct. at 1164-65. Dobosz suffered no such alteration. He was reinstated with back pay and seniority credit, and his due process claim thus fails the Paul “reputation plus” test. See Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 66, 107 L.Ed.2d 33 (1989); see also Sparks v. City of Atlanta, 496 F.Supp. 770, 774 (N.D.Ga.1980) (“stigma” suffered by police officer whose sus pension was rescinded does not give rise to due process liberty interest). With respect to Dobosz’s claim that he was deprived of property without due process, he argues that he was entitled to notice and an opportunity to be heard prior to suspension. It is true that Dobosz had a property interest in continued employment by virtue of the “just cause” termination provision in the collective agreement. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). We have found no authority existing at the pertinent time that supports Dobosz’s argument that he had a right" }, { "docid": "14125080", "title": "", "text": "specifically, assert that because Plaintiff was not a County employee, the county owed him no right to a name-clearing hearing. As we explain below, Plaintiff failed to request a name-clearing hearing, which was fatal to his claim, and therefore the district court properly dismissed his complaint. III. The Fourteenth Amendment forbids state actors from depriving individuals of life, liberty or property without due process of law. See Mertik, 983 F.2d at 1359; see also Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Joelson v. United States, 86 F.3d 1413, 1420 (6th Cir.1996) (“To sustain a procedural due process claim, a plaintiff must first demonstrate the existence of a protected liberty or property interest.”). Except in exceptional circumstances, not applicable here, before a person is deprived of either a liberty or property interest, he has a right to some kind of hearing. Roth, 408 U.S. at 570 n. 7, 92 S.Ct. 2701. “[A] person’s reputation, good name, honor, and integrity are among the liberty interests protected by the due process clause of the fourteenth amendment.” Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989). However, defamation alone is not enough to invoke due process concerns. Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Some alteration of a right or status “previously recognized by state law,” such as employment, must accompany the damage to reputation. Id. at 711-12, 96 S.Ct. 1155; see also Ferencz v. Hairston, 119 F.3d 1244, 1249 (6th Cir. 1997) (holding that as publication of defamatory comments complained of was not accompanied by the deprivation of any tangible interest such as continued em ployment, the publication did not deprive plaintiffs of a liberty interest); Mertik, 983 F.2d at 1361 (explaining that when a plaintiff alleges “loss, infringement or denial of a government benefit previously enjoyed ... coupled with communications by government officials, having a stigmatizing effect, a claim for deprivation of liberty without due process of law will lie”). Consequently, when a “nontenured employee shows that he has been stigmatized by the" }, { "docid": "12387429", "title": "", "text": "contained allegations that were personally and professionally detrimental to his good name, reputation, honor, and integrity, and that he was deprived of a protected liberty interest when the defendants failed to give him notice and a hearing prior to issuing the letter and prior to removing him from active case rotation. A person has a protected liberty interest in his “reputation, good name, honor, and integrity,” as well as in “being free to move about, live, and practice his profession without the burden of an unjustified label of infamy.” Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989); Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 366 (9th Cir.1976) (citing Roth, 408 U.S. at 572, 92 S.Ct. at 2706). To establish a deprivation of a protected liberty interest in the employment context, a plaintiff must demonstrate stigmatizing governmental action which so negatively affects his or her reputation that it effectively forecloses the opportunity to practice a chosen profession. Roth, 408 U.S. at 573-74, 92 S.Ct. at 2707-08. A plaintiff must also allege in his or her complaint that the stigmatizing information was publicly disclosed. Christian v. Belcher, 888 F.2d 410, 416 (6th Cir.1989). Joelson’s allegations are insufficient. Although Joelson asserts that the U.S. Trustee’s letter contained detrimental allegations, the letter merely stated that the U.S. Trustee was “unable to return [Joel-son] to the active case rotation” as a result of his prior case administration, his failure to adhere to procedures, and his interaction with creditors, debtors, and the U.S. Trustee’s Office. Statements of this nature do not implicate a protected liberty interest. Liberty interests “are not implicated ... by allegations of improper or inadequate performance or, in some cases, by charges of incompetence, neglect of duty or malfeasance. A charge that merely makes a plaintiff less attractive to other employers but leaves open a definite range of opportunity does not constitute a liberty deprivation.” Gregory v. Hunt, 24 F.3d 781, 788 (6th Cir.1994) (citing Chilingirian, 882 F.2d at 205-06 n. 8). In addition, Joelson has failed to plead any facts demonstrating that the defendants made a public statement detrimental to" }, { "docid": "12387428", "title": "", "text": "would entitle him to relief.” In re DeLorean, 991 F.2d at 1240. Under the Fifth Amendment, no person is to be “deprived of life, liberty, or property, without due process of law.” U.S.Const, amend. V. To sustain a procedural due process claim, a plaintiff must first demonstrate the existence of a protected liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972) (noting that the “range of interests protected by procedural due process is not infinite”). For the following reasons, Joelson is unable to state a valid procedural due process claim, and the district court properly dismissed Counts III, IV and V. We first address Joelson’s claims that the defendants deprived him of a protected liberty interest in his reputation, good name, hon- or and integrity, and in the pursuit of his chosen profession (i.e., Chapter 7 trustee panel membership) in violation of the Due Process Clause of the Fifth Amendment. Joelson contends that the November 16,1993 letter he received from the U.S. Trustee contained allegations that were personally and professionally detrimental to his good name, reputation, honor, and integrity, and that he was deprived of a protected liberty interest when the defendants failed to give him notice and a hearing prior to issuing the letter and prior to removing him from active case rotation. A person has a protected liberty interest in his “reputation, good name, honor, and integrity,” as well as in “being free to move about, live, and practice his profession without the burden of an unjustified label of infamy.” Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir.1989); Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 366 (9th Cir.1976) (citing Roth, 408 U.S. at 572, 92 S.Ct. at 2706). To establish a deprivation of a protected liberty interest in the employment context, a plaintiff must demonstrate stigmatizing governmental action which so negatively affects his or her reputation that it effectively forecloses the opportunity to practice a chosen profession. Roth, 408 U.S. at 573-74, 92 S.Ct. at 2707-08. A plaintiff must also allege in his or" } ]

[ { "docid": "2543865", "title": "", "text": "Paquin filed suit in district court alleging unlawful termination and retaliation under the ADEA and the DCHRA. At the close of discovery Fannie Mae moved for summary judgment on all of Paquin’s claims, which motion was granted. Paquin then filed this appeal. II. A. Termination Claim In ADEA eases we apply the familiar three-step burdenshifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for Title VII cases. See Koger v. Reno, 98 F.3d 631, 633 (D.C.Cir.1996). Under the first step of McDonnell Douglas the complainant must establish a prima facie case of discrimination. 411 U.S. at 802, 93 S.Ct. at 1824. In the ADEA context a complainant makes his required prima facie showing if he (i) belongs to the protected age group, (ii) was qualified for the position, (in) was terminated and (iv) was replaced by a younger person. See Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C.Cir.), cert. denied, 464 U.S. 994, 104 S.Ct. 488, 78 L.Ed.2d 683 (1983). If the complainant succeeds in establishing a prima facie case, the second step of the McDonnell Douglas framework shifts the burden to the defendant employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant does so, then under the third step of McDonnell Douglas the complainant must produce evi dence showing that the defendant’s proffered reason is but a pretext for .discrimination. Id. at 804, 93 S.Ct. at 1825. We agree with the district court that Paquin established a prima facie case. Pa-quin was fifty years old at the time of his termination and therefore a member of the age class (at least 40 years old) protected by the ADEA. 29 U.S.C. § 631(a). Like'the district court, we believe that Paquin’s twenty-year tenure at Fannie Mae and his series of promotions within the Department suffice to show that he was qualified for his position. Finally, there is no dispute that Paquin was terminated and replaced by a younger person. Turning to the second" } ]

[ { "docid": "16027924", "title": "", "text": "his refusing to work overtime for “FMLA-protected reasons,” and that his termination was motivated by retaliation for that conduct. Because the question of whether the employer took the adverse action for a legitimate or retaliatory reason is analogous to the question of intent raised in Title VII employment-discrimination actions, we employ the framework set forth in McDonnell Douglas Corp. v. Green to analyze “the tricky issue of motivation.” Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The McDonnell Douglas framework is a three-step procedure. First, a plaintiff employee must carry the initial burden of coming forward with sufficient evidence to establish a prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To meet this burden, Ameen must show that “(1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; (3) there is a causal connection” between his protected activity and Amphenol’s decision to terminate him. Hodgens, 144 F.3d at 161. If the plaintiff establishes a prima facie case, the burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason” for the termination. Id. at 160. If the employer can proffer evidence “sufficient to raise a genuine issue of fact as to whether it discriminated against the employee ... the presumption of discrimination drops from the case, and the plaintiff retains the ultimate burden of showing that the employer’s stated reason for terminating him was in fact a pretext for retaliating against him for having taken protected FMLA leave.” Hodgens, 144 F.3d at 160-61 (citing McDonnell Douglas, 411 U.S. at 802, 804, 93 S.Ct. 1817). A. Prima Facie Case The district court assumed that Ameen established a prima facie case of retaliation, and further assumed without deciding that his protected conduct included both his FMLA leave and his decision not to work overtime after returning from his (non-FMLA) personal leave. As Ameen’s claim fails for the reasons we explain below, we will take a similar tack. See Collazo-Rosado v. University of Puerto Rico," }, { "docid": "22217279", "title": "", "text": "is entitled to receive a right-to-sue letter from the EEOC, a plaintiff may proceed absent such a letter, provided she has received a right-to-sue letter from the appropriate state agency. Thus, Surrell’s claims may proceed. b. Merits of Title VII and 42 U.S.C. § 1981 Claims Typically, we apply the familiar McDonnell Douglas burden shifting framework for Title VII and § 1981 claims. Metoyer, 504 F.3d at 930 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). A plaintiff may alternatively proceed by simply producing “direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the employer.” Id. at 931. Here, the parties and the court below applied the McDonnell Douglas framework; we do so as well. Under this framework, the plaintiff first must establish a prima facie case of discrimination or retaliation. Id. at 931 n. 6. To do so through indirect evidence, the plaintiff must show that (1) she is a member of a protected class; (2) she ap plied for a job for which she was qualified; (3) she was rejected; and (4) the position remained open and the employer sought other similarly-qualified employees. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff establishes a pri-ma facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory or retaliatory conduct. Metoyer, 504 F.3d at 931 n. 6. If the employer articulates a legitimate reason for its action, “the presumption of discrimination drops out of the picture, and the plaintiff may defeat summary judgment by satisfying the usual standard or proof required ... under Fed.R.Civ.P. 56(c).” Id. (quoting Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir.2006)). The plaintiff may then offer evidence that “the employer’s proffered nondiscriminatory reason is merely a pretext for discrimination.” Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.2005). Surrell raises three types of claims under Title VII and 42 U.S.C. § 1981: (1) discrimination (failure to promote and failure to cross-train); (2) retaliation; and" }, { "docid": "18180557", "title": "", "text": "and retaliation for protected activities. See 2 U.S.C. §§ 1302(a)(2), 1311(a), 1317(a). Title VII makes it unlawful for employers to “discriminate against any individual ... because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(l). Title VII also prohibits employers from retaliating against employees that have engaged in protected activities by “testif[ying], assist[ing], or partie-ipat[ing] in any manner in an investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). Until recently, the burden-shifting test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) governed a court’s inquiry when, as here, a plaintiff adduced no direct evidence of discrimination or retaliation. Under the McDonnell Douglas framework, the complainant had to establish a prima facie' case of discrimination. See id. at 802, 93 S.Ct. 1817. Thereafter, the burden shifted “to the employer to articulate some legitimate, nondiscriminatory reason” for its conduct. Id. It was then incumbent on the plaintiff to show that the employer’s proffered reason was pretextual. Id. at 804, 93 S.Ct. 1817. Our Circuit, however, has simplified this inquiry. Under the revised approach, if the employee has suffered an adverse employment action, and the employer proffers a “legitimate,” nondiscriminatory reason for the adverse employment action, the court “need not — and should not — decide whether plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008); see Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009) (applying Brady to Title VII retaliation claims). The sole issue for the Court is retaliation or discrimination vel non, and becomes, in essence, a question of whether a reasonable jury could find that the employer’s asserted rationale “was' the actual reason” for its actions. See Brady, 520 F.3d at 494. ANALYSIS Plaintiff here alleges two adverse employment actions: his non-selection to the roster of permanent electricians, and his termination as a temporary night shift employee. Discussing each adverse action in turn, I find that plaintiff has not shown a genuine issue of material fact that defendant’s actions violated the CAA. I. Non-Selection Plaintiff claims that he" }, { "docid": "23066197", "title": "", "text": "cannot review the merits of the department’s decision to revoke [plaintiff’s security clearance. Id. (internal citations omitted). Although Brazil’s circumstances may be compelling, he asks the court to do exactly what Egan and Dorfmont forbid, for we find that in this case a Title VII analysis necessarily requires the court to perform some review of the merits of the security clearance decision. Analysis of a Title VII discrimination claim advances according to a three-step process. Under Title VII, a plaintiff has the initial burden of pleading a prima facie case of disparate treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the plaintiff is successful, the burden of production shifts to the defendant to provide legitimate, nondiscriminatory reasons for its actions. Id. at 802-04, 93 S.Ct. at 1824-25. Finally, should the defendant produce such legitimate, nondiscriminatory reasons, the burden is then on the plaintiff to establish by a preponderance of the evidence that the defendant’s supposedly legitimate reasons were in fact a pretext to mask an illegal motive. Id. After finding that Brazil had made a pri-ma facie case of discrimination satisfying step one of the Title VII analysis, the district court concluded that it could not perform step two to determine whether the Navy’s proffered reasons for its decision were legitimate without necessarily reviewing the merits of that decision. The court’s conclusion was correct. The second and third steps of the Title VII analysis present an insurmountable hurdle for Brazil. It is impossible for the court to establish in the first place whether the Navy’s proffered reasons were legitimate without evaluating their merits. Even if the court were able to get by step two, it is very likely to be impossible for it to proceed to step three and determine whether the given reasons were mere pretext without considering their. merits. The district court thus properly applied Dorfmont in granting the Navy’s motion for summary judgment. Brazil argues that Title VII analysis does not involve a review of the merits because it does not require the court to determine" }, { "docid": "22556837", "title": "", "text": "critical in § 510 cases — yet is seldom the subject of direct proof — the district court allocated the burdens of production and order of proof in a manner similar to the approach used in Title VII and ADEA cases, where direct evidence of discriminatory intent is also scarce or nonexistent. The Supreme Court first set forth its three-step analytical framework for indirect proof of intent in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973) (Title VII), and has since summarized the procedure First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection....” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at 802, 804, 93 S.Ct. at 1824, 1825). This structure of proof is premised on two assumptions. First, employers make business decisions for a reason, not at random. Second, when all valid, nondiscriminatory business reasons for the decision have been eliminated, common experience with employment discrimination suggests it is likely that the decision was based on unlawful considerations. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); see also Note, Indirect Proof of Discriminatory Motive in Title VII Disparate Treatment Claims after Aikens, 88 Colum.L.Rev. 1114, 1120 (1988), When an employment decision is adverse to a plaintiff, the shifting burden of proof is designed to sharpen vague allegations of discrimination and flush out the true reasons that prompted an employer’s action. In addition to shifting burdens of production, the Court in McDonnell Douglas implemented its underlying premises" }, { "docid": "15333676", "title": "", "text": "when deciding whether a plaintiff alleging unlawful employment discrimination has presented sufficient evidence to survive a summary judgment motion, we must consider the evidence in light of the three-part procedure set out for such claims by the Supreme Court’s decision in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as well as the Court’s elaborations on that procedure in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and Saint Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In McDonnell Douglas, the Court established a three-part protocol governing the order and burdens of proof in cases alleging discrimination in violation of Title VII. First, the complainant must establish a pri-ma facie case of prohibited discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1825. If he succeeds, the burden then shifts to the employer to articulate legitimate, nondiscriminatory reasons for the challenged action. See id. Should the employer succeed in presenting such reasons, the burden then returns to the complainant, who must prove that the employer’s proffered reasons for the challenged actions were merely a pretext for unlawful discrimination. See id. at 804-05, 93 S.Ct. at 1825-26. In Burdine, the Court held that in producing nondiscriminatory reasons for its challenged action, the employer is not obligated to support these reasons with objective evidence sufficient to satisfy the “preponderance of the evidence” standard, see Burdine, 450 U.S. at 259-60, 101 S.Ct. at 1096-97, and that the plaintiff at all times retains the ultimate burden of persuasion. See id. at 253, 101 S.Ct. at 1093. In the litigation underlying Saint Mary’s Honor Center v. Hicks, Melvin Hicks sued his former employer, Saint Mary’s Honor Center, alleging that Saint Mary’s had discharged him because of his race, thereby violating Title VII. See Hicks, 509 U.S. at 505, 113 S.Ct. at 2746. After a full bench trial, the district court found that the reasons the employer had proffered as nondiscriminatory motivations for its decision to terminate the plaintiff were not" }, { "docid": "13164671", "title": "", "text": "intended to discriminate against him. Id. at 1459 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973)). In McDonnell Douglas, the Supreme Court first introduced a framework for the allocation of burdens and the order of proof in disparate treatment cases. 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-1825. As the case of Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir.1994), recently stated, the three steps for analyzing a claim under Title VII and the Age Discrimination in Employment Act (ADEA) include: [A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory. Wallis, 26 F.3d at 889 (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir.1985), as amended, 784 F.2d 1407 (9th Cir.1986)). The degree of proof necessary to prove a prima facie case is minimal. Id. (citations omitted). The Plaintiff needs to only offer evidence which gives rise to an inference of discrimination. Id. (citation omitted). “The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 [93 S.Ct. 1817, 1824, 36 L.Ed.2d 668] (1973), or by more direct evidence of discriminatory intent.” Wallis, 26 F.3d at 889 (citing Lowe, 775 F.2d at 1009). After the prima facie case is established, if the Defendant offers a legitimate, nondiseriminatory reason for the employment decision, the McDonnell Douglas presumption of discrimination drops out. Id. at 892 (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Therefore, “the mere existence of a prima facie ease, based on the minimum evidence necessary to raise a McDonnell Douglas presumption does not preclude summary judgment.” Wallis, 26 F.3d at 890." }, { "docid": "21335118", "title": "", "text": "favor of the nonmoving party. Id. at 255, 106 S.Ct. 2505. Insofar as we are treating the District Court’s decisions to strike two of appellant’s claims as dismissals under Rule 12(b)(6), “[o]ur standard of review under Federal Rules 12(b)(6) and 56 is the same: de novo.” Wilson v. Peña, 79 F.3d 154, 160 n. 1 (D.C.Cir.1996). Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Title VII discrimination claims are assessed pursuant to a simple three-step framework: . First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the [action in question].” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). To establish a prima facie case of discrimination, a claimant must show that “(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999). To establish a prima facie case of retaliation, a claimant must show that (1) she engaged in a statutorily protected activity; (2) she suffered a materially adverse action by her employer; and (3) a causal connection existed between the two. Id.; see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2414-15, 165 L.Ed.2d 345 (2006) (finding that Title VII’s anti-retaliation provision prohibits all materially adverse actions, not merely those harms that are specifically employment-related). In either situation, as the Supreme Court has made clear, “[t]he burden of establishing a prima facie" }, { "docid": "9879002", "title": "", "text": "benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Courts typically look to Title VII and its jurisprudence when addressing both DCHRA and § 1981 claims. Carpenter, 165 F.3d at 72; Carney v. American Univ., 151 F.3d 1090, 1093 (D.C.Cir.1998). In order to trigger the McDonnell Douglas burden-shifting scheme that courts have developed under Title VII and which applies equally under the DCHRA and under § 1981, see Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1553 (D.C.Cir.1997), plaintiff must prove by a preponderance of the evidence: 1) that he is a member of a protected class; 2) that he suffered an adverse employment action; and 3) that the action yields an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In the context of retaliation claims, the McDonnell Douglas scheme is triggered upon a showing 1) that the plaintiff engaged in protected activity; 2) that he suffered an adverse employment action; 3) and that these actions are causally connected. Carter, 387 F.3d at 878. When the plaintiff complains, as does Mr. Sullivan here, that one of his employer’s retaliatory acts was a failure to promote him or to consider him for promotion, the plaintiff must also show as part of his prima facie case, 4) that he applied for the position; and 5) that he was qualified for the position. Id. Upon demonstrating a prima facie case of retaliation or discrimination, the burden of production shifts to the defendant employer to articulate a legitimate and nondiscriminatory reason for taking the actions of which the plaintiff complains. McDonnell Douglas, 411 U.S. at 802-3, 93 S.Ct. 1817. If the employer is able to meet this burden by producing a credible reason explaining its actions, the presumption of discrimination or retaliation disappears, and the plaintiff is afforded an opportunity to show that the employer’s proffered reason is in fact pretext for discrimination and retaliation. Id. at 804, 93 S.Ct. 1817. Plaintiffs’ prima facie case of race discrimination and retaliation as to his office relocation and his nonselection" }, { "docid": "18762248", "title": "", "text": "the ADEA to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), the district court employed in this ADEA suit the three-step procedure developed by the Supreme Court for assessment of Title VII claims. Both parties to this appeal argue that the district court’s invocation of Title VII doctrine was appropriate. We agree. See Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). Under the Supreme Court’s scheme, a Title VII plaintiff first must establish a prima facie case of unlawful discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); see also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 & n. 6, 101 S.Ct. 1089, 1093 & n. 6, 67 L.Ed.2d 207 (1981); Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir.1984). If the plaintiff succeeds in making out this prima facie case, the burden of production then shifts to the defendant employer “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell, 411 U.S. at 802, 93 S.Ct. at 1824. See Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. Should the employer articulate such a reason, the burden of production shifts back to the employee, who then must demonstrate either that the employer’s proffered reason is a pretext or that the employer’s decision was more likely motivated by some discriminatory reason. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. Following this sequence, the district court found that Graham had established a prima facie case of age discrimination and that Leopold had demonstrated a legitimate, nondiscriminatory reason for its decision to fire Graham. See Graham v. F.B. Leopold Co., 602 F.Supp. 1423, 1424-25 (W.D.Pa.1985). However, the court held that Graham then failed to introduce evidence that the employer’s reason was a pretext or evidence proving the defendant’s discriminatory intent. Consequently, it granted summary judgment for Leopold. See id. at 1425-26. When addressing a" }, { "docid": "22373571", "title": "", "text": "an adverse employment action for purposes of her disparate pay claim. See Davis, 245 F.3d at 1240; Phelan, 463 F.3d at 780. C. Denial of Promotion For the purpose of its discussion the district court accepted that Crawford had established a prima facie case of discrimination and retaliation for failure to promote and therefore proceeded to an analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). So doing, the court rejected Crawford’s contentions that the defendants’ proffered reasons for not selecting her and eventually eliminating the position were pretextual. On any Title VII claim the plaintiff bears “the ultimate burden of proving discriminatory treatment by a preponderance of the evidence.” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.1990). She may satisfy her burden by presenting direct evidence of an intent to discriminate or circumstantial evidence using McDonnell Douglas’s burden-shifting framework. Under this framework, if the plaintiff establishes a prima facie case, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer does this, the burden shifts back to the plaintiff to show that the employer’s stated reason was a pretext for discrimination. See id. at 804, 93 S.Ct. 1817; Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir.1997) (per curiam). The inquiry into pretext requires the court to determine, in view of all the evidence, “whether the plaintiff has cast sufficient doubt on the defendant’s proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude that the employer’s proffered legitimate reasons were not what actually motivated its conduct.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997) (citation and quotations omitted). As with claims of substantive discrimination, Title VII retaliation claims require that “[o]nee the plaintiff establishes [a] prima facie case, the employer must proffer a legitimate, non-discriminatory reason for the adverse employment action. If the employer offers such legitimate reasons for the employment action, the plaintiff must then demonstrate that the employer’s proffered explanation is a pretext for" }, { "docid": "22134070", "title": "", "text": "a discriminatory intent or motive. See Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1424 (10th Cir.1993). The basic allocation of burdens for a disparate treatment claim is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, Ms. Bullington has the initial burden of establishing a prima facie case of discrimination, which in an ADEA or Title VII case requires her to show: “(1) she is a member of the class protected by the statute; (2) she suffered an adverse employment action; (3) she was qualified for the position at issue; and (4) she was treated less favorably than others not in the protected class.” Sanchez v. Denver Pub. Schls., 164 F.3d 527, 531 (10th Cir.1998). If she establishes a 'prima facie case, the burden shifts to United to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817. If United offers a legitimate, nondiserimina-tory reason for its actions, the burden reverts to Ms. Bullington to show United’s proffered reason was a pretext for discrimination. Id. at 804-05, 93 S.Ct. 1817. After applying this framework, the district court discerned two bases for granting summary judgment. First, the court concluded that Ms. Bullington failed to establish a prima facie case of disparate treatment. Second, the court determined Ms. Bullington failed to present any evidence that United’s proffered reasons for not selecting her were a pretext for discrimination. Of these two bases, the district court appears to have focused more closely on the second, scrutinizing United’s proffered reasons for not hiring Ms. Bull-ington — i.e., her poor performance during the interviews-and Ms. Bullington’s attacks on those proffered reasons. We therefore find it appropriate to assume, for the purposes of this opinion, that Ms. Bullington established a prima facie case of discrimination and proceed directly to the second and third steps of the McDonnell Douglas analysis. See V-1 Oil Co. v. Utah State Dep’t of Public Safety, 131 F.3d 1415, 1422 (10th Cir.1997) (“[W]e may affirm for any grounds" }, { "docid": "20997938", "title": "", "text": "any reason proffered by the defendant in. support of its decision to demote the plaintiff was merely a pretext for race discrimination. The Court examines the plaintiffs allegations of race discrimination pursuant to Title VII under the three-step burden shifting analysis developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This three step burden shifting analysis also applies to the plaintiffs claim under the New York Human Rights Law. See Van Zant, supra, 80 F.3d at 714-15 (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir.1995)). First, the plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the plaintiffs demotion. Third, should the defendant advance such a reason or reasons, the plaintiff bears the ultimate burden to prove that the legitimate reasons offered by the employer were merely a pretext for intentional racial discrimination. McDonnell Douglas Corp., supra, 411 U.S. at 802-03, 93 S.Ct. at 1824-25; Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The plaintiff may satisfy this latter burden either: (1) directly, by producing evidence that a discriminatory reason more likely motivated the employer; or (2) indirectly, by showing that the employer’s proffered explanation is unworthy of credence, and that intentional discrimination actually motivated the employer’s actions. Meiri, supra, 759 F.2d at 997. However, mere conclusory allegations of discrimination are insufficient to meet this burden. Id. at 998. a. The prima facie case In order to establish a prima facie case under the facts of this ease (namely, reduction in position, not discharge), the plaintiff must present evidence that: (1) he is a member of a protected class; (2) he was qualified for the position or positions in which he worked; (3) he was subject to adverse employment decisions; and (4) either the position remained open or he was replaced by" }, { "docid": "18043750", "title": "", "text": "to terminate him. Second, he argues that Lundstrom, as a biased subordinate, impermissibly influenced Romero in his decisionmaking and that Lundstrom’s biased reporting was a proximate cause of Lobato’s dismissal, regardless of whether Romero himself was motivated by the same bias. The district court did not credit either of these theories of liability. First, the court concluded that the record evidence did not support Lobato’s contention that NMED’s proffered reasons for his dismissal were in fact pretextual. Second, the court concluded that NMED insulated itself from Lundstrom’s improper biases by conducting an independent investigation into Lobato’s conduct. As we explain below, we substantially agree with the district court’s reasoning on both Title VII theories. 1. Pretext Title VII prohibits employers from discharging employees on account of race or national origin. It also forbids retaliating against an employee who reports or opposes violations of Title VII. See 42 U.S.C. § 2000e-2(a)(l); id. § 2000e-3(a). We analyze this claim using the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, Lobato has the initial burden of establishing a prima facie case of discrimination, then the burden shifts to NMED to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Luster v. Vilsack, 667 F.3d 1089, 1092 (10th Cir.2011). If NMED can make such a showing, the burden shifts back to Lobato to show there is a genuine dispute about whether the proffered explanation was pretext for discrimination. Id. The parties do not dispute the first two steps in the McDonnell Douglas framework. Our analysis thus turns on the third step — pretext. “Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-diseriminatory reasons.” Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (internal quotation marks omitted). “In determining whether the proffered reason for a decision was pretextual, we examine the facts as" }, { "docid": "17518315", "title": "", "text": "to prove, as he must under a long line of decisions culminating in St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), that Washington Hospital’s nondiseriminatory reasons for rejecting his application were proffered as a pretext for its true motive which was discriminatory. Aka’s second claim fails because he has not tied the alleged failure to accommodate to a specific actionable employment decision, as explained in our holding in Marshall v. Federal Express Corp., 130 F.3d 1095 (D.C.Cir.1997). I. First, the district court correctly granted summary judgment on Aka’s discrimination claims under the ADEA and the ADA because Aka produced no evidence raising a triable isstie of fact about either whether Washington Hospital’s articulated reasons for rejecting Aka’s application were false and or whether its real reason was discriminatory. In both ADEA and ADA discrimination cases we apply the burden allocation scheme first announced in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Paquin v. Federal Nat’l Mortgage Ass’n, 119 F.3d 23, 26 (D.C.Cir.1997) (ADEA case); Marshall v. Federal Express Corp., 130 F.3d 1095, 1099 (D.C.Cir.1997) (ADA case). As we have previously explained: Under the first step of McDonnell-Douglas the complainant must establish a prima facie case of discrimination.... If the complainant succeeds in establishing a prima facie case, the second step of the McDonnell-Douglas framework shifts the burden to the defendant employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If the defendant does so, then under the third step of McDonnell-Douglas the complainant must produce evidence showing that the defendant’s proffered reason is but a pretext for discrimination. Paquin, 119 F.3d at 26-27 (internal citations omitted). Key to the third step of the analysis is the phrase “pretext for discrimination,” which has sometimes been construed (incorrectly) to mean simply a false reason. The word “pretext” is defined as “[t]hat which is put forward to cover the real purpose or object.” See XII Oxford English Dictionary 437 (2d ed.1989). Thus, a pretext is not merely a false reason but a false reason" }, { "docid": "15785182", "title": "", "text": "Food, Inc., 175 F.3d 1074, 1077 (D.C.Cir.1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Courts routinely apply the McDonnell Douglas framework to ADEA claims. E.g., id. at 1077 (applying the McDonnell Douglas framework to ADEA claims); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 140-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (assuming that the McDonnell Douglas framework is fully applicable to ADEA actions); Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23, 26 (D.C.Cir.1997) (concluding that “[i]n ADEA cases we apply the familiar three-step burdenshifting [McDonnell Douglas ] framework”). This framework also applies to DCHRA discrimination claims. Pa-quin, 119 F.3d at 27 n. 1 (extending “the same analysis to ... ADEA and DCHRA claims”); Perkins v. District of Columbia, 769 F.Supp. 11, 14 n. 3 (D.D.C.1991) (Penn, J.) (noting that the ‘McDonnell Douglas approach has been adopted by [cjourts reviewing [DCHRA] claims of employment discrimination”). 1. The McDonnell Douglas Framework The Supreme Court has explained the McDonnell Douglas framework as follows: First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the bur den shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection” .... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination .... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). To establish a prima facie case of age discrimination, the plaintiff must show that: (1) he is a member of the ADEA’s protected class of persons over forty years of age;" }, { "docid": "23387552", "title": "", "text": "disability; 2) he is ‘otherwise qualified’ to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap.” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.1996); see also Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 363 n. 2 (6th Cir. 2007) (explaining that, unlike “every other circuit save one,” the Sixth Circuit continues to subject claims brought under either the ADA or the Rehabilitation Act to the same substantive standard despite the linguistic differences between the two acts). Because Jones attempts to meet this burden by presenting circumstantial, as opposed to direct, evidence of discrimination, we apply the familiar three-step burden-shifting framework originally articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The initial burden rests with the plaintiff to establish a prima facie case of discrimination. Monette, 90 F.3d at 1186. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment decision. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Should the employer carry this burden, then the burden returns to the plaintiff to prove by a preponderance of the evidence that the employer’s proffered reason was in fact a pretext designed to mask illegal discrimination. See id. Jones can defeat summary judgment only if his evidence is sufficient to “create a genuine dispute at each stage of the McDonnell Douglas inquiry.” See Macy, 484 F.3d at 364. C. Prima facie case Although the district court granted summary judgment to the USPS on the issue of pretext (the third step under the McDonnell Douglas framework), the USPS urges us to affirm the court’s decision instead on the ground that Jones failed to establish a prima facie case of disability-based discrimination under the Rehabilitation Act (the first step). To do so, a plaintiff must establish each of the following five" }, { "docid": "17518316", "title": "", "text": "23, 26 (D.C.Cir.1997) (ADEA case); Marshall v. Federal Express Corp., 130 F.3d 1095, 1099 (D.C.Cir.1997) (ADA case). As we have previously explained: Under the first step of McDonnell-Douglas the complainant must establish a prima facie case of discrimination.... If the complainant succeeds in establishing a prima facie case, the second step of the McDonnell-Douglas framework shifts the burden to the defendant employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If the defendant does so, then under the third step of McDonnell-Douglas the complainant must produce evidence showing that the defendant’s proffered reason is but a pretext for discrimination. Paquin, 119 F.3d at 26-27 (internal citations omitted). Key to the third step of the analysis is the phrase “pretext for discrimination,” which has sometimes been construed (incorrectly) to mean simply a false reason. The word “pretext” is defined as “[t]hat which is put forward to cover the real purpose or object.” See XII Oxford English Dictionary 437 (2d ed.1989). Thus, a pretext is not merely a false reason but a false reason proffered to cover up the true reason. See Fisher v. Vassar College, 114 F.3d 1332, 1337-38 (2d Cir.1997) (en banc) (“[Djiserimi-nation does not lurk behind every inaccurate statement.... In short, the fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by the plaintiff.”), cert. denied, — U.S. -, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). Recognizing this, the Hicks majority repeatedly explained that a plaintiff must do more than simply cast doubt on the truth of the employer’s proffered legitimate reason; he must also affirmatively show it was proffered as a cover-up for a discriminatory reason. See 509 U.S. at 507-08, 113 S.Ct. 2742 (“ ‘If the defendant eames this burden of production, the presumption raised by the prima facie case is rebutted’ and ‘drops from the case.’ The plaintiff then has ‘the full and fair opportunity to demonstrate,’ through presentation of his own case and through cross-examination of the defendant’s witnesses, ‘that the proffered reason was not the true reason for the employment" }, { "docid": "17099168", "title": "", "text": "for summary judgment. In reply, the defendant reiterates the elements of a prima facie case as set forth in Gamble, which it claims the plaintiffs must meet before they can proceed to trial on the FHA claims. Because the plaintiffs cannot demonstrate the fourth element of such pri-ma facie case, the defendant asserts that the plaintiffs’ FHA claims can proceed no further. In my view, the defendant places undue reliance on Gamble. To be sure, the court in Gamble analyzed the plaintiffs claim under Title VII’s 3-step McDonnell Douglas/Bur-dine burden-shifting analysis. Gamble, 104 F.3d at 305 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under the McDonnell Douglas method, (a) the plaintiff must prove each of the elements of his prima facie case; (b) if the plaintiff carries his initial burden of establishing a prima facie case, the employer then has the burden of “articulating” a legitimate, non-discriminatory reason for the adverse action about which the plaintiff complains; and, (c) once the employer articulates a legitimate non-discriminatory reason for the actions being challenged, the burden shifts back to the plaintiff, to prove that the proffered reason was not the real reason for the action (i.e., it was pretextual). St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas Corp., supra. Such burden-shifting analysis is appropriate in a discrimination claim that a plaintiff is attempting to prove indirectly, as was the situation in Gamble. Indeed, in Gamble the court explicitly held that, “the record is devoid of any evidence of intent or motive to discriminate.” Gamble, 104 F.3d at 306. As stated by the 7th Circuit Court of Appeals in Collier v. Budd Company, 66 F.3d 886 (7th Cir.1995), (an age discrimination case), “the McDonnell Douglas method is a substitute for proving discrimination by direct evidence, and courts allow the burden-shifting framework because employers do ‘not normally memorialize an intention to discriminate on the basis of age.’ Castleman v. Acme Boot Company, 959 F.2d 1417, 1420 (7th Cir.1992). The prima facie case and specifically its" }, { "docid": "14727557", "title": "", "text": "its adverse hiring decision. The general standards that govern the analysis of claims of disparate treatment under Title VII were laid down in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the Supreme Court established the analytic process to be used for evaluating evidence of discrimination in Title VII cases. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The “order and allocation of proof” for determining whether there has been discrimination are as follows: (1) the plaintiff must present evidence sufficient to make out a prima facie case of discrimination; (2) the defendant must then “articulate” a legitimate, nondiscriminatory reason for its decision not to employ the plaintiff; and (3) the plaintiff must then be given the chance to prove that the “assigned reason” was “a pretext or discriminatory in its application.” McDonnell Douglas, 411 U.S. at 807, 93 S.Ct. at 1826. Thus, if the plaintiff fails to establish his prima facie case, the defendant is entitled to judgment. On the other hand, if the plaintiff establishes his prima facie case, and the defendant fails to “articulate” a legitimate, nondiscriminatory reason for its adverse employment decision, the third step is inapplicable, and the plaintiff has established unlawful discrimination. Texas Department of Community Affairs v. Bur-dine, 450 U.S. 248, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). Finally, if the plaintiff makes out his prima facie case, and the defendant “articulatefsj” a reason for its adverse employment decision, the resolution of the issue of whether there has been unlawful discrimination depends on whether the plaintiff carries his burden at step three. The Court in McDonnell Douglas also explained the substantive standards applicable at each of the three steps in the analytic process. The Court there set forth the four elements necessary for individual complainants to establish a prima facie case of race discrimination under Title VII; the plaintiff must show: 1. that he belongs to a racial minority; 2. that he applied and was qualified for a job for which the" } ]

[ { "docid": "22556903", "title": "", "text": "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2(a) (West 1981). A plaintiff who claims that she has been sexually harassed has a cause of action under Title VII if the sexual harassment was either a quid pro quo arrangement, or if the harassment was so pervasive that it had the effect of creating an intimidating, hostile, or offensive work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). Plaintiffs here attempt to make out a “hostile work environment” claim by showing that the AID squad room was so heavily charged with sexism that it was intimidating, hostile, and offensive. To bring an actionable claim for sexual harassment because of an intimidating and offensive work environment, a plaintiff must establish “by the totality of the circumstances, the existence of a hostile or abusive working environment which is severe enough to affect the psychological stability of a minority employee.” Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir.1989) (emphasis in original). We hold that five constituents must converge to bring a successful claim for a sexually hostile work environment under Title VII: (1) the employees suffered intentional discrimination because of their sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. Cf. Rabidue v. Osceola Refining Co., 805 F.2d 611, 619-20 (6th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987). It is particularly important to note that these factors include both a subjective standard (No. 3) and an objective standard (No. 4). The subjective factor is crucial because it demonstrates that the alleged conduct injured this particular plaintiff giving her a claim for judicial relief. The objective factor, however, is the more critical for it is here that the finder of" } ]

[ { "docid": "21078836", "title": "", "text": "Kunin’s sexual harassment claim because the evidence, even when viewed in the light most favorable to Kunin, failed to establish “regular and pervasive” harassment and re-spondeat superior liability on Sears’ part. Second, it claims that awards of front and back pay are unfounded legally where a jury concludes that an employer did not act based on a discriminatory motive in firing the employee. Finally, Sears contends that the district court erred in admitting evidence of previous complaints Kunin made to Sears management about issues unrelated to her sexual harassment claims. Because we find Sears’ argument that Kunin failed to prove respondeat superior liability compelling, we do not address its other assertions. III. DISCUSSION Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). It is well established that a plaintiff can demonstrate a violation of Title VII by proving that sexual harassment created a hostile or abusive work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). According to our precedent, to succeed in a sexual harassment claim based on a hostile work environment, the plaintiff must show five elements: (1) the employee[ ] suffered intentional discrimination because of [her] sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990). The district court instructed the jury pursuant to this standard and the parties do not question that this standard applies to this case. The central dispute in this appeal concerns the fifth factor in the Andrews test, the existence of respondeat superior liability. An employer is not always liable for a hostile work environment. Instead, under Andrews, “liability exists where the defendant" }, { "docid": "4179411", "title": "", "text": "interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). That analysis “must concentrate not on individual incidents, but on the overall scenario.” Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir.1999). To establish a Title VII claim based upon a hostile work environment, a plaintiff must show: “(1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996). Cole has failed to establish that the College created a hostile work environment. He provided details of his personal feelings of embarrassment and humiliation. (D.I. 1 at ¶ 31, 40.) Specifically, Cole says he felt that he was “talked down to and belittled because he [is] African-American,” “that nothing he said made any difference,” and that he was “degraded each day he [went] to work.” (Id.) However, he has not adequately substantiated that those feelings are objectively reasonable, in that the alleged discrimination was pervasive or would detrimentally affect a reasonable person of the same race in the same position. Importantly, a plaintiffs subjective reaction is not enough to establish a hostile work environment; there must also be objective proof. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. In terms of objective evidence, Cole vaguely alleged in his Complaint that students of the College made “negative comments” regarding the size of his office, and other employees noted that the office was “small.” (D.I. 1 at ¶ 40.) Even if accepted as true, “ ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious)” do not create a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal citation omitted). Cole also provided evidence that the College threatened to terminate him if he did not provide" }, { "docid": "23653390", "title": "", "text": "any indicia of discriminatory animus, may not be sufficient in itself to establish a violation.” Id. at 1381, quoting Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1236 (D.C.Cir.1984) (emphasis in original). Because the legal inquiry into racial harassment claims vests discretion in the trier of fact to make particularized determinations in individual eases, the district judge articulated a systematic, multi-factor approach to harassment claims arising under Title VII. He identified six steps to be taken by a court analyzing racial harassment claims under Title VII: (1) The employee belongs to a protected group; (2) The employee was subject to unwelcome harassment; (3) The harassment complained of was based on race; (4) The harassment complained of affected a term, condition or privilege of employment; (5) Plaintiff must be able to prove that the employer knew or should have known of the harassment and failed to take prompt remedial action; and (6) The employee acted reasonably under the circumstances. Daniels, 740 F.Supp. at 560-561. Other courts reviewing harassment claims have articulated the proper inquiry differently, separating out the factors in alternative ways. In Andrews v. City of Philadelphia, 895 F.2d 1469 (1990), a sex discrimination case, the Third Circuit first recognized the broad principle that “harassment because of an intimidating and offensive work environment [must be established] ‘by the totality of the circumstances, the existence of a hostile or abusive working environment which is severe enough to affect the psychological stability of a minority employee.’ ” Id. at 1482, quoting Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir.1989) (emphasis in original). The court proceeded to identify five (rather than six) “constituent” parts of a successful claim for establishing harassment in a hostile work environment under Title VII: (1) the employees suffered intentional discrimination due to sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. Andrews, 895 F.2d at 1482. Cf. Rabidue v. Osceola Refining Co., 805" }, { "docid": "324690", "title": "", "text": "of a hostile work environment based on race, a plaintiff must demonstrate: “(1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996). To determine whether a hostile work environment exists, a court must look at the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with the employee’s work performance. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Harris, 510 U.S. at 28,114 S.Ct. 367. While the plaintiff is not required to plead a prima-facie case of hostile work environment in the complaint, the alleged facts must be able to support such a claim. See Spairow, 216 F.3d at 1114. In addition, the Supreme Court has circumscribed the definition of a hostile work environment so that “[t]hese standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’ ” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citations omitted). The D.C. Circuit has set forth a standard to evaluate employer liability for co-worker harassment. See Curry v. District of Columbia, 195 F.3d 654, 660 (D.C.Cir.1999). Specifically, an employer is liable for co-worker harassment if “the employer knew or should have known of the harassment and failed to implement prompt and appropriate corrective action.” Id. This standard applies to co-workers who are not in supervisory positions. See id. In this case, the plaintiff has pleaded too many facts, demonstrating the weakness of her hostile work environment claim. See Sparrow, 216 F.3d at 1116. The totality of the circumstances indicates the following: there was one isolated, derogatory comment; the -plaintiff allegedly received the cold shoulder from other officers; one day elapsed between the comment and the time the plaintiff left work permanently; and" }, { "docid": "2222932", "title": "", "text": "the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). III. Under Title VII, an employer may not “discharge ... or ... discriminate against any individual with respect to ... compensation, terms, conditions, or privileges of employment because of such individuals ... sex [.]” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may further establish that an employer violated Title VII by proving that sexual harassment created a hostile work environment. Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir.1999) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). To establish a hostile work environment claim against an employer, a plaintiff must prove the following: (1) the employee suffered intentional discrimination because of their sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir.2001) (citing Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir.1990)). The first four elements of this claim establish that a hostile work environment existed. The fifth element, which is the only element at issue in this appeal, establishes the basis on which to hold the employer hable. The basis of an employer’s liability for hostile environment sexual harassment depends on whether the harasser is the victim’s supervisor or merely a coworker. Parkins v. Civil Constructors of III., Inc., 163 F.3d 1027, 1032 (7th Cir.1998) (citations omitted). In the present case, Huston concedes that the employees who performed or witnessed the alleged harassing incidents were not supervisors; all were merely co-worker technicians. When the hostile work environment is created by a victim’s non-supervisory coworkers, the employer is not automatically liable. Kunin, 175 F.3d at 293. Rather, employer liability for co-worker harassment exists only if the employer failed to provide a reasonable avenue for complaint or, alternatively," }, { "docid": "22132931", "title": "", "text": "failed to carry its burden. III. Title VII Claims A. Hostile Environment. In order to establish a claim for employment discrimination due to an intimidating or offensive work environment, a plaintiff must establish, “by the totality of the circumstances, the existence of a hostile or abusive environment which is severe enough to affect the psychological stability of a minority employee.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990) (quoting Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir.1989)). Specifically, a plaintiff must show: (1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability. Id.; West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir.1995). As the Supreme Court has emphasized: whether an environment is “hostile” or “abusive” can be determined only by looking at the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, -, 114 S.Ct. 367, 371, 126 L.Ed.2d 295, 302 (1993). The issue in this case is whether the district court correctly determined that the plaintiffs faded to demonstrate that they suffered from intentional racial discrimination or that the discrimination was pervasive and regular. In many respects, the facts of this case represent what has become the typical Title VII employment discrimination case of this decade. Anti-discrimination laws and lawsuits have “educated” would-be violators such that extreme manifestations of discrimination are thankfully rare. Though they still happen, the instances in which employers and employees openly use derogatory epithets to refer to. fellow employees appear to be declining. Regrettably, however, this in no way suggests that discrimination based upon an individual’s race, gender, or age is near an end. Discrimination continues to pollute the social and economic" }, { "docid": "3940818", "title": "", "text": "endured had anything to do with her race. Hart has offered no comparative evidence that Wal-Mart singled her out and treated her more harshly than white employees. Here, the incidents alleged by Hart, when considered individually and in their totality— and viewed in the light most favorable to Hart — simply do not paint a picture of a hostile working environment based upon race because there is no evidence that the management treated Hart harshly because she is black. Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir.1994) (“If the nature of an employee’s environment, however unpleasant, is not due to [race], [he or] she has not been the victim of [race] discrimination as a result of the environment.”) Without any comparative evidence, the incidents alleged by Hart constitute, at most, unfair and unprofessional treatment. Title VII, however, does not protect employees from unpleasant working environments. Vore v. Indiana Bell Telephone Co., 32 F.3d 1161, 1162 (7th Cir.1994) (Title VII “provides that an employee is to be free ... from a raeially-hostile work environment,” but an employer is not required to guarantee a pleasant workplace). While the evidence may reflect unfavorably on the personality and management capabilities of her supervisors, it is insufficient to show that there was a pervasive hostility toward blacks. Accordingly, the court finds that Wal-Mart’s motion for summary judgment as to Hart’s hostile work environment claim is due to be granted. (b) Constructive Discharge The court likewise finds that Wal-Mart cannot be held liable under a constructive discharge theory, since the working conditions were not “so difficult that a reasonable person in the employee’s position would feel compelled to resign.” Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.1986). In Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518 (11th Cir.1991), the Eleventh Circuit repeated the familiar standard by which constructive discharge claims are analyzed: ‘The law in this circuit with respect to constructive discharge is well-established. To show constructive discharge, the employee must prove that his [or her] working conditions were so difficult or unpleasant that a reasonable person would have felt" }, { "docid": "4179410", "title": "", "text": "had worked in the UBMS program for over 3 years. (Id. at B-0209, 137:16-23.) The College had previously denied Coleman’s application to be the Program Manager in her own department, but she was selected over Brown to be the UBMS Program Manager. (D.I. 63 at 11111.51.) I make no comment on the strength of this evidence except to say it is enough to raise genuine issues of material fact as to retaliation, and I will therefore deny the Motion as to the claim for discriminatory retaliation. C. Hostile Work Environment A hostile work environment may form the basis of a Title VII discrimination claim against an employer. Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2001) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The inquiry into whether an environment is hostile requires the consideration of “all the circumstances ... [including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). That analysis “must concentrate not on individual incidents, but on the overall scenario.” Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir.1999). To establish a Title VII claim based upon a hostile work environment, a plaintiff must show: “(1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996). Cole has failed to establish that the College created a hostile work environment. He provided details of his personal feelings of embarrassment and humiliation. (D.I. 1 at ¶ 31, 40.) Specifically, Cole says he felt that he was “talked down to and belittled because he [is] African-American,” “that nothing he said" }, { "docid": "3580457", "title": "", "text": "of such individual’s race, color, religion, sex, or national origin[.] 42 U.S.C. § 2000&-2. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990); Steiner v. Showboat Operating Company, 25 F.3d 1459, 1462 (9th Cir.1994); Giordano v. William Paterson College of New Jersey, 804 F.Supp. 637, 641 (D.N.J.1992). To bring an actionable claim for sexual harassment because of an intimidating and offensive work environment, a plaintiff must establish “by the totality of the circumstances, the existence of a hostile or abusive working environment which is severe enough to affect the psychological stability of a minority employee.” Andrews, 895 F.2d at 1482 (quoting Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir.1989), cert. denied, — U.S. -, 115 S.Ct. 1110, 130 L.Ed.2d 1075 (1995)). In Andrews, the Third Circuit held that a successful claim of sexual harassment based upon a hostile work environment under Title VII requires the presence of five constituents: (1) the employees suffered intentional discrimination because of their sex; (footnote omitted) (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respon-deat superior liability. Id. Whether waiver of the attorney-client privilege exists here depends Upon federal court interpretation of the fifth constituent. The Supreme Court has directed courts to apply agency principles when determining whether liability has been established against an employer. Meritor, 477 U.S. at 73, 106 S.Ct. at 2408; Bouton v. BMW of North America, Inc., 29 F.3d 103, 106 (3d Cir.1994). According to these principles “ ‘liability exists where the defendant knew or should have known of the harassment and failed to take prompt remedial action.’ ” Andrews, 895 F.2d at 1486 (quoting Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989)); see also Giordano v. William Paterson College, 804 F.Supp. at 643. As the Supreme Court instructed in Upjohn, a corporation’s knowledge" }, { "docid": "18743417", "title": "", "text": "Fuentes, 32 F.3d at 764. Evidence of discriminatory intent, insufficient to constitute direct evidence of discrimination, may satisfy this burden. Armbruster v. Unisys Corp., 32 F.3d 768, 781-82 (3d Cir.1994). 2. Disparate Treatment Based On Race The Supreme Court recognizes that Title VII’s protection embraces not only “economic” or “tangible” discrimination, such as the denial or loss of a job or promotion, but includes work environments abusive to employees because of their race as well. West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir.1995) (citing Harris v. Forklift Systems, — U.S. —,—, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993)). To be cognizable under Title VII, racial harassment must be sufficiently severe or pervasive to alter the terms, conditions, or privileges of the plaintiffs employment. West, 45 F.3d at 753. (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986)). In Andrews v. City of Philadelphia the Third Circuit adopted the “totality of the circumstances” approach to determine whether a hostile work environment exists. 895 F.2d 1469, 1482 (3d Cir.1990). “A plaintiff must establish by the totality of the circumstances, the existence of a hostile or abusive working environment_” Andrews, 895 F.2d at 1482 (quoting Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir.1989)). The relevant circumstances may include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it interferes with an employee’s work performance.” West, 45 F.3d at 753 (citing Harris, — U.S. at —, 114 S.Ct. at 371). Five elements must be fulfilled by a plaintiff to establish a prima facie case of hostile work environment: “(1) the plaintiff suffered intentional discrimination because of his or her membership in the protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would have detrimentally affected a reasonable person of the same protected class in that position; and, (5) the existence of re-spondeat superior liability.” West, 45 F.3d at 753 (quoting Andrews," }, { "docid": "22896826", "title": "", "text": "is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ id., at 67, 106 S.Ct., at 2405 (internal brackets and quotation marks omitted), Title VII is violated. Harris, — U.S. at -, 114 S.Ct. at 370. Furthermore, the Court stated that to determine whether an environment is “hostile” or “abusive” a court must look at “all the circumstances.” Id. at -, 114 S.Ct. at 371. In Andrews v. Philadelphia, 895 F.2d 1469 (3d Cir.1990), we discussed the requirements for establishing a claim predicated on a sexually hostile work environment: [F]ive constituents must converge to bring a successful claim for a sexually hostile work environment under Title VII: (1) the employees suffered intentional discrimination because of their sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. 895 F.2d at 1482 (footnote and citations omitted). As we noted, “these factors include both a subjective standard (No. 3) and an objective standard (No. 4).” Since our decision in Andrews, the Supreme Court in Harris has affirmed that a hostile work environment claim must involve both subjective and objective harm to the employee. In this case, Spain asserts that the harassment she suffered led to her work environment being sexually hostile and to the denial of a promotion. Quite clearly, she presents an atypical sexually hostile work environment claim in that the alleged wrongful conduct does not include the type of blatantly sexist behavior that is frequently the hallmark of such claims. For example, this case differs from Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60, 106 S.Ct. 2399, 2402, 91 L.Ed.2d 49 (1986), in which an employee testified that her employer “fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.” See also King v. Hillen, 21 F.3d 1572 (2d Cir.1994). But an" }, { "docid": "22836801", "title": "", "text": "Knabe contends that Humbrecht subjected her to a hostile work environment during her two months of employment at the Monroe-ville Elby’s. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986) (“[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.”) We have held that, to bring a claim for sexual harassment under Title VII because of an intimidating and offensive work environment, a plaintiff must establish “ ‘by the totality of the circumstances, the existence of a hostile or abusive working environment which is severe enough to affect the psychological stability of a minority employee.’” Andrews, 895 F.2d at 1482 (quoting Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1510 (11th Cir.1989)). Even if a work environment is found to be hostile, a plaintiff must also show that the conduct creating the hostile work environment should be imputed to the employer. In Andrews, we set forth the five factors that a plaintiff must establish to bring a successful hostile work environment claim against his or her employer: (1) the employee suffered intentional discrimination because of his or her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) respondeat superior liability existed. Id.; see also Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir.1994). The crucial question here is the fifth factor: whether Boury can be held liable for Humbrecht’s actions. In Vinson, supra, the Supreme Court rejected the notion that employers are strictly liable for sexually hostile work environments created by employees. Rather, drawing from the fact that an “agent” of an employer is included in the definition of employer in Title VII, 42 U.S.C. § 2000e(b), the Court directed that agency principles be used as guidance in determining employer liability for hostile work environments created by employees. 477 U.S. at 72, 106 S.Ct. at 2407-08. We elaborated on those" }, { "docid": "22896825", "title": "", "text": "of employment because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(l). Recently, the Supreme Court in Harris v. Forklift Sys., Inc., — U.S. -, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), discussed the foundation of a sexually hostile work environment claim: As we made clear in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), this language ‘is not limited to “economic” or “tangible” discrimination. The phrase “terms, conditions, or privileges of employment” evinces a congressional intent “to strike at the entire spectrum of disparate treatment of men and women” in employment,’ which includes requiring people to work in a dis-criminatorily hostile or abusive environment. Id., at 64, 106 S.Ct., at 2404, quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13, 98 S.Ct. 1370, 1374, n. 13, 55 L.Ed.2d 657 (1978) (some internal quotation marks omitted). When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ 477 U.S., at 65, 106 S.Ct., at 2405, that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ id., at 67, 106 S.Ct., at 2405 (internal brackets and quotation marks omitted), Title VII is violated. Harris, — U.S. at -, 114 S.Ct. at 370. Furthermore, the Court stated that to determine whether an environment is “hostile” or “abusive” a court must look at “all the circumstances.” Id. at -, 114 S.Ct. at 371. In Andrews v. Philadelphia, 895 F.2d 1469 (3d Cir.1990), we discussed the requirements for establishing a claim predicated on a sexually hostile work environment: [F]ive constituents must converge to bring a successful claim for a sexually hostile work environment under Title VII: (1) the employees suffered intentional discrimination because of their sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. 895 F.2d at 1482 (footnote and citations omitted). As we noted," }, { "docid": "22132930", "title": "", "text": "258 (1983), reversed on other grounds sub nom. Matsushita, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A district court’s grant of summary judgment is subject to plenary review, Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir.1990), and we are required “to apply the same test the district court should have utilized initially.” Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976); see also Berner Int’l Corp. v. Mars Sales Co., 987 F.2d 975 (3d Cir.1993); and J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1530 (3d Cir.1990). On summary judgment, Cort Furniture does not challenge the factual basis of Aman and Johnson’s supporting evidence, but claims instead that even if their evidence is true, it would be insufficient to establish impermissible employment practices under Title VII. Cort Furniture is, therefore, required to demonstrate that there is no evidence in the record upon which any reasonable jury could conclude that discrimination occurred. For the following reasons, we conclude that Cort Furniture failed to carry its burden. III. Title VII Claims A. Hostile Environment. In order to establish a claim for employment discrimination due to an intimidating or offensive work environment, a plaintiff must establish, “by the totality of the circumstances, the existence of a hostile or abusive environment which is severe enough to affect the psychological stability of a minority employee.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990) (quoting Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir.1989)). Specifically, a plaintiff must show: (1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability. Id.; West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir.1995). As the Supreme Court has emphasized: whether an environment is “hostile” or “abusive” can be determined only by looking at the circumstances. These" }, { "docid": "324689", "title": "", "text": "severe mental distress. See id. While the defendant does not dispute this incident, the defendant argues that this single incident does not rise to the level of hostility required for a hostile work environment. See Mot. for Summ. J. at 14. Title VII makes it unlawful for an employer to “discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or nation of origin.” 42 U .S.C. § 2000e—2(a)(1). “Terms, conditions, or privileges” encompass tangible as well as psychological harm. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In addition, the Supreme Court has held that “[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quotation omitted). To establish a claim of a hostile work environment based on race, a plaintiff must demonstrate: “(1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996). To determine whether a hostile work environment exists, a court must look at the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with the employee’s work performance. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Harris, 510 U.S. at 28,114 S.Ct. 367. While the plaintiff is not required to plead a prima-facie case of hostile work environment in the complaint, the alleged facts must be able to support such a claim. See Spairow, 216 F.3d at 1114. In addition, the Supreme" }, { "docid": "19340860", "title": "", "text": "to uniformed personnel of the armed forces. The motion to dismiss plaintiffs claim under the Pennsylvania Human Relations Act is based on sovereign immunity under the Eleventh Amendment. The Court will address these arguments in turn. A. Claim Under Title VII 1. Theory of Sexual Harassment Plaintiff does not identify the Title VII theory on which she bases her claim. Thus, the Court will consider the two types of Title VII claims which might arguably be raised by plaintiffs allegations— claims of hostile work environment and a quid pro quo claim of sexual harassment under Title VII. The elements of a prima facie case of hostile work environment sexual harassment under Title VII are: “ ‘(1) the employee suffered intentional discrimination [in a work environment] because of [his or her] sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.’ ” Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir.1997) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990)). Any such claim under Title VII must fail because plaintiff was not at the time of the alleged assault an employee and thus could not have been exposed to a hostile workplace. With respect to a claim of quid pro quo sexual harassment, the Third Circuit has held that: unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute [quid pro quo] sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. Id. at 27 (internal quotation omitted). Those elements were modified by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), to require an actual change in employment conditions in cases where a plaintiff refused to submit to" }, { "docid": "5860688", "title": "", "text": "2405). The Third Circuit Court of Appeals has set forth a five-part test for the district courts to apply in hostile work environment cases. Accordingly, a black female Title VII plaintiff can successfully bring a race- or gender-based discrimination claim against her employer only if she shows that (1) she suffered intentional discrimination on account of her race or gender; (2) the discrimination was pervasive and regular; (3) she was detrimentally affected by the discrimination (the subjective standard); (4) the discrimination would have detrimentally affected a reasonable person in the plaintiffs position (the objective standard); and (5) the existence of respondeat superior liability. Andrews, 895 F.2d at 1482; see West, 45 F.3d at 753; Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir. 1994) (applying Andrews test). 1. Gender-Based Claims PECO argues that it is entitled to summary judgment as to Ms. Harley’s gender-based claims because: (1) the alleged discrimination was objectively not pervasive and regular and not gender-based; and (2) there can be no respondeat superior liability, a. Nature of Alleged Discrimination In determining whether a work environment is objectively hostile, courts are not to examine the scenario on an incident-by-incident basis, but are instead to consider the totality of the circumstances. Andrews, 895 F.2d at 1484; Stair v. Lehigh Valley Carpenters Local 600, 813 F.Supp. 1116, 1119 (E.D.Pa.1993). An objectively hostile work environment can arise from the frequent use of insulting and derogatory language relating to women or from the pervasive display of pornography in common areas in the workplace. As our Court of Appeals has remarked, “[o]bseene language and pornography quite possibly could be regarded as ‘highly offensive to a woman who seeks to deal with her fellow employees and clients with professional dignity and without the barrier of sexual differentiation and abuse.’ ” Andrews, 895 F.2d at 1485-86 (quoting Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir.1988), cert. denied, 489 U.S. 1020,109 S.Ct. 1140, 103 L.Ed.2d 201 (1989)). Upon review of the facts presented by the parties, we conclude that Ms. Harley has raised an issue of fact as to whether she" }, { "docid": "12173199", "title": "", "text": "claims of a racially hostile work environment. See Faragher v. Boca Raton, 524 U.S. 775, 786-87, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). An actionable claim of a hostile work environment requires the plaintiff to demonstrate “by the totality of the circumstances, the existence of a hostile or abusive working environment which is severe enough to affect the psychological stability of a minority employee.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990) (emphasis in original). To be ultimately successful on a claim of hostile work environment, the plaintiff must demonstrate that the harassment was severe or pervasive to such a degree that the harassment altered the terms and conditions of employment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The following five elements must be established by a plaintiff bringing a hostile work environment claim pursuant to Title VII:(1) the plaintiff suffered intentional discrimination because of her membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex or race in that position; and (5) there is a basis for vicarious liability. See Andrews, 895 F.2d at 1482; see also Cardenas v. Massey, 269 F.3d 251 (3d Cir.2001); Aman v. Cort Furniture, 85 F.3d 1074, 1081 (3d Cir.1996); West v. Philadelphia Elec. Co., 45 F.3d 744, 753-54 (3d Cir.1995). The determination whether a Title VII plaintiff is able to establish each of the elements of a hostile work environment claim is a fact-intensive inquiry into the “overall scenario” in which the alleged harassment occurred. Cardenas, 269 F.3d at 261 (3d Cir.2001). “The Supreme Court has cautioned that ‘conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview.’ ” Newring v. PNC Corp., No. 01-1973, 2006 WL 840347, *7-8 (W.D.Pa. Mar.29, 2006) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct." }, { "docid": "11693067", "title": "", "text": "106 S.Ct. 2899, 91 L.Ed.2d 49 (1986). Title VII makes it unlawful for an employer to “discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of an individual’s race, color, religion, sex, or nation of origin.” 42 U.S.C. § 2000e-2(a)(l). The Supreme Court has made it clear that the language “terms, conditions, or privileges” contained in Section 2000e-2(a)(l) is not limited to economic or tangible discrimination and may include psychological harm. See Mentor, 477 U.S. at 64, 106 S.Ct. 2399. In addition, the Court has held that “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Harris v. Forklift Sys., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (quotation omitted). On the other hand, conduct that does not create a hostile or abusive environment is beyond the purview of Title VII. See id. at 21,114 S.Ct. 367. To establish a claim of hostile work environment based on racial discrimination, a plaintiff must demonstrate “(1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that-position; and (5) the existence of respondeat superior liability.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996). A finding of a hostile work environment depends on the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee’s work performance. See Faragher v. City of Boca Baton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Harris, 510 U.S. at 23, 114 S.Ct. 367. Moreover, the harassment need not be racial in content to create a racially hostile work environment. See Bowdre v. Richardson, 131 F.Supp.2d 179, 187 (D.D.C.2001) (Urbina, J.). Rather, it must be shown that “had the plaintiff [not been part of the protected class,]" }, { "docid": "5860687", "title": "", "text": "individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race [or] ... sex.” 42 U.S.C. § 2000e-2(a)(l). The United States Supreme Court has concluded that a plaintiff may establish a Title VII violation if she can show that discrimination based on race or gender created a hostile or abusive working environment. Patterson v. McLean Credit Union, 491 U.S. 164, 180, 109 S.Ct. 2363, 2374, 105 L.Ed.2d 132 (1989); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). In order for a plaintiff to recover under Title VII, the defendant must have subjected her to conduct that rises above that which is merely offensive or annoying; the conduct implicates Title VII only if it is “ ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Harris v. Forklift Systems, Inc., 510 U.S. 17, -, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (quoting Meritor, All U.S. at 67, 106 S.Ct. at 2405). The Third Circuit Court of Appeals has set forth a five-part test for the district courts to apply in hostile work environment cases. Accordingly, a black female Title VII plaintiff can successfully bring a race- or gender-based discrimination claim against her employer only if she shows that (1) she suffered intentional discrimination on account of her race or gender; (2) the discrimination was pervasive and regular; (3) she was detrimentally affected by the discrimination (the subjective standard); (4) the discrimination would have detrimentally affected a reasonable person in the plaintiffs position (the objective standard); and (5) the existence of respondeat superior liability. Andrews, 895 F.2d at 1482; see West, 45 F.3d at 753; Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir. 1994) (applying Andrews test). 1. Gender-Based Claims PECO argues that it is entitled to summary judgment as to Ms. Harley’s gender-based claims because: (1) the alleged discrimination was objectively not pervasive and regular and not gender-based; and (2) there can be no respondeat superior liability, a. Nature of Alleged Discrimination In determining" } ]

[ { "docid": "22672197", "title": "", "text": "Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced. See 381 U. S., at 622 and n. 4; 382 U. S., at 409, n. 3. On the other hand, apart from the application of the holdings in Escobedo and Miranda to the parties before the Court in those cases, the possibility of applying the decisions only prospectively is yet an open issue. All of the reasons set forth above for making Escobedo and Miranda nonretroactive suggest that these decisions should apply only to trials begun after the decisions were announced. Future defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. Law enforcement officers and trial courts will have fair notice that statements taken in violation of these standards may not be used against an accused. Prospective application only to trials begun after the standards were announced is particularly appropriate here. Authorities attempting to protect the privilege have not been apprised heretofore of the specific safeguards which are now obligatory. Consequently they have adopted devices which, although below the constitutional minimum, were not intentional evasions of the requirements of the privilege. In these circumstances, to upset all of the convictions still pending on direct appeal which were obtained in trials preceding Escobedo and Miranda would impose an unjustifiable burden on the administration of justice. At the same time, we do not find any persuasive reason to extend Escobedo and Miranda to cases tried before those decisions were announced, even though the cases may still be on direct appeal. Our introductory discussion in Linkletter, and the cases cited therein, have made it clear that there are no jurisprudential or constitutional obstacles to the rule we are adopting here. See 381 U. S., at 622-629. In appropriate prior cases we have already applied new judicial standards in a wholly prospective manner. See England" } ]

[ { "docid": "432001", "title": "", "text": "is not important for obviously he must have been tried at some time between October 14, 1960, when he was arraigned, and June 20, 1962, when the Supreme Court of Ohio dismissed his appeal for want of a debatable constitutional question, and thus his trial must have taken place at least approximately two years before May 18, 1964, when Massiah was decided. On that daté, however, McLeod’s case had not become “final” in the sense of that word as used in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), for it was then pending in the Supreme Court of Ohio on the first grant of certiorari on June 22, 1964, remanding for consideration “in light of” Massiah handed down about a month before. Thus the second action of the Court on May 24, 1965, reversing State of Ohio v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349 (1964), on Massiah v. United States, establishes that the rule of Massiah, unlike the rules of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), see Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882 (1966), applies at least to cases which- had not become “final” in the Linkletter sense of the word. Nor had White’s ease become final in the Link-letter sense when Massiah was handed down on May 18, 1964, for the Supreme Court of New Hampshire affirmed White’s conviction on December 3, 1963, and certiorari thereto was not denied until October 12, 1964, some five months after Massiah. We therefore have no occasion to consider the possibility that the Massiah rule may be fully retroactive, that is, retroactive to cases which had become final in the Linkletter sense at the time Massiah was decided. It is enough that on Massiah’s date White’s case.like McLeod’s was still under judicial consideration. We are not unaware that in two circuits Massiah has been held to apply only prospectively. In" }, { "docid": "8461046", "title": "", "text": "v. United States, 366 U.S. 213 [81 S.Ct. 1052, 6 L.Ed.2d 246] (1961). * * * Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective. * * * “While the cases discussed above deal with the invalidity of statutes or the effect of a decision overturning long-established common-law rules there seems to be no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application. It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, ‘We think the Federal Constitution has no voice upon the subject.’ “Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. * * * ” 381 U.S. at 627-628-629, 85 S.Ct. at 1736-1737-1738. It will be noted that at the end of the second paragraph quoted above the Supreme Court laid down the “accepted rule” which the Court of Appeals of Maryland recognized as controlling and which is binding on this Court, namely, “that in appropriate cases the Court may in the interest of justice make the rule prospective.” At the end of the discussion of retro-activity in Schowgurow, the Maryland Court stated: “In many difficult questions of constitutional law arising from criminal trials, the protection of the rights of the individual is weighed against the protection of society. Both are basic to ordered liberty. On the matter of retroactivity here involved, the dip of the scales is obvious.”" }, { "docid": "15640591", "title": "", "text": "use of the same rule in the constitutional area where the exigencies of the situation require such an application,” in short that “the Constitution neither prohibits nor requires retrospective effect.” Upon that premise, resolution of the issue requires us to “weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” 381 U.S. at 628-629, 85 S.Ct. at 1737-1738. (382 U.S. at 410, 86 S.Ct. at 461). Tehan added nothing to the rationale of Linkletter. Apparently, that opinion was written in language to make that clear. At least, that is how we read Tehan. Johnson v. State of New Jersey, also reiterated the exact language of the two earlier cases, stating that: In the past year we have twice dealt with the problem of retroactivity in connection with other constitutional rules of criminal procedure. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). These cases establish the principle that in criminal litigation concerning constitutional claims, “the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application.” 381 U.S., at 628, 85 S.Ct., at 1737; 382 U.S., at 410, 86 S.Ct., at 461. (384 U.S. at 726-727, 86 S.Ct. at 1777). But Mr. Chief Justice Warren added a bit to the rationale of the two earlier cases when he stated that: These cases also delineate criteria by which such an issue may be resolved. We must look to the purpose of our new standards governing police interrogation, the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of Escobedo and Miranda. See 382 U.S., at 636, 85 S.Ct., at 1741; 382 U.S., at 413, 86 S.Ct., at 464. (384 U.S. at 727, 86 S.Ct. at 1777). A portion of" }, { "docid": "19057355", "title": "", "text": "supra, the Supreme Court considered, and answered in the negative, the question whether the rule in Mapp would apply retroactively to convictions which had become final before June 19, 1961 — with “final” being defined for this purpose to cover cases “where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before [the] * * decision in Mapp v. State of Ohio.” 381 U.S. at 622 n. 5, 85 S.Ct. at 1734 n. 5. From that negative determination, sufficient to decide Linkletter on its actual facts, petitioner would derive the affirmative proposition that the Mapp principle does govern cases which had not become “final” until after June 19, 1961, and is therefore applicable here. Respondent points out that, at least as a logical matter, this is not necessarily so. Proceeding beyond logic, respondent mounts weighty arguments from later variants of the “prospectivity” doctrine to show that there is no principled reason why Mapp should be held applicable to cases tried before that decision. For example, respondent observes, when the problem of cases tried but not necessarily “final” came to be considered in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Supreme Court concluded that the retroactive reach of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), should not extend farther than to cases “in which the trial began” after the dates of these two decisions. 384 U.S. at 721, 86 S.Ct. 1772. Then, it is noted, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the retrospective effect of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), was limited to cases in which the operative facts now held to offend due process occurred after' the date of the decisions so" }, { "docid": "12972094", "title": "", "text": "support of the quoted statement Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Each of these decisions applied the Mapp exclusionary rule to convictions still pending on appeal at the time of the Mapp decision. As recent as June 20, 1966 the Supreme Court held in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, that Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (June 13, 1966), are not to be applied retroactively. More specifically, the Court held that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of the Escobedo decision, and that Miranda applies only to those cases in which the trial began after it was decided on June 13, 1966. Of greater significance to the question before us is the Court’s statement on page 732 of 384 U.S., on page 1780 of 86 S.Ct.: “Decisions prior to Linkletter and Tehan [Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, January, 1966] had already established without discussion that Mapp and Griffin [Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, 1965] applied to cases still on direct appeal at the time they were announced. See 381 U.S., at 622 [85 S.Ct. at 1734] and n. 4, 85 S.Ct., at 1237; 382 U.S., at 409, n. 3, 86 S.Ct. at 461.” From the foregoing we conclude that Douglas does apply and therefore controls this case. Bosler’s direct appeal from the conviction had not been decided and was still pending when the Douglas decision was announced. This being the situation, the Supreme Court of Missouri was required to heed and give effect to the teachings of that case. Having failed" }, { "docid": "23600799", "title": "", "text": "judiciary from the clamor of the public in deciding particular cases. It is obvious that, under the standards laid down in Linkletter v Walker, 381 US 618, 14 L Ed 2d 601, 85 S Ct 1731 (1965), and Stovall v Denno, 388 US 293, 18 L Ed 2d 1199, 87 S Ct 1967 (1967), the Supreme Court has, as stated by Mr. Justice Black in his dissent in Stovall, at page 304: “. . . legislate [d] a timetable by which the Constitution’s provisions shall become effective. For reasons stated in my dissent in Linkletter v Walker, 381 US 618, 640, 14 L Ed 2d 601, 85 S Ct 1731, 1743, I would hold that the petitioner here and every other person in jail under convictions based on unconstitutional evidence should be given the advantage of today’s newly announced constitutional rules.” Even the majority in Linkletter acknowledged that it was, therein, establishing a new rule: “. . . It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. [Footnote citations omitted.] Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, ‘We think the federal constitution has no voice upon the subject.’ [Great Northern R. Co. v Sunburst Oil & Ref. Co., 287 US 358, 364, 77 L Ed 360, 53 S Ct 145 (1932) (referring to State court’s prospective overruling of prior decision).] “Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” [Ibid., 381 US 628, 629.] [Emphasis supplied.] I believe that the Supreme Court’s reliance on the out-of-context statement by Justice Cardozo in Great Northern, as quoted above, is seriously" }, { "docid": "8461045", "title": "", "text": "the decision in Mapp. After reviewing the earlier cases, the Court said: “Under our cases it appears * * that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set ‘principle of absolute retroactive invalidity’ but depends upon a consideration of ‘particular relations * * * and particular conduct * * * of rights claimed to have become vested, of status, of prior determinations deemed to have finality’; and ‘of public policy in the light of the nature both of the statute and of its previous application.’ Chicot County Drainage Dist. v. Baxter State Bank, supra, [308 U.S. 371] at 374 [60 S.Ct. 317 at 319, 84 L.Ed. 329]. “That no distinction was drawn between civil and criminal litigation is shown by the language used not only in Schooner Peggy, supra, [United States v. Schooner Peggy, 1 Cranch 103 [2 L.Ed. 49] (1801)] and Chicot County, supra, but also in such cases as State v. Jones, 44 N.M. 623, 107 P.2d 324 (1940) and James v. United States, 366 U.S. 213 [81 S.Ct. 1052, 6 L.Ed.2d 246] (1961). * * * Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective. * * * “While the cases discussed above deal with the invalidity of statutes or the effect of a decision overturning long-established common-law rules there seems to be no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application. It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, ‘We think the Federal Constitution has no voice upon the subject.’ “Once the premise is accepted that we are" }, { "docid": "5327052", "title": "", "text": "in Linkletter, “that decision [Mapp ] has also been applied to cases still pending on direct review at the time it was rendered.” . As recent as June 20, 1966 the Supreme Court held in Johnson v. New Jersey that Escobedo v. State of Illinois and Miranda v. Arizona are not to be applied retroactively. More specifically, the Court held that Escobedo affects only those cases in which the trial began after June 22,1964, the date of the Escobedo decision, and that Miranda applies only to those cases in which the trial began after it was decided on June 13, 1966. Of greater significance to the question before us is the Court’s statement on page 732 of 384 U.S., on page 1780 of 86 S.Ct.: “Decisions prior to Linkletter and Tehan [Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 409, 15 L.Ed.2d 453 ... ] had already established without discussion that Mapp and Griffin [Griffin v. State of California . . . ] applied to cases still on direct appeal at the time they were announced. . . . ” From the foregoing we conclude that Douglas does apply and therefore controls this case. Bosler’s direct appeal from the conviction had not been decided and was still pending when the Douglas decision was announced. 363 F.2d at 158 (citations omitted). Although a reasonable interpretation of the Bosler decision is that retroactive effect must be given to all new constitutional interpretations involving criminal rights pending appeal at the time the new rule is announced, upon reconsideration we conclude the Supreme Court decisions on this issue require a different analysis. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court held that the new rule pronounced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applying the Fourth Amendment rules pertaining to search and seizure to state trials, and overriding the 12 year old precedent established in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), would not be made retroactive to" }, { "docid": "21950149", "title": "", "text": "by the due process clause of the Fourteenth Amendment, was not to be retroactively applied. Linkletter clearly pointed out that the exclusionary rule of Mapp stood upon a different jurisprudential basis from certain criminal pro cedural rules which involve “* * * the fairness of the trial — the very integrity of the fact-finding process.” 381 U.S. at 639, 85 S.Ct. at 1743. In treating retroactivity in later cases the United States Supreme Court has substantively developed and more clearly defined as required by the controversy before it the aforementioned test enunciated in Link-letter. In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (June, 1966) the Supreme Court rejected retroactive applicability for the criminal procedural rules it had announced in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (June, 1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (June, 1966). It is clear that the Supreme Court can in the interest of justice make a rule non-retroactive where the exigencies of the particular situation require this result; and, in making this determination, it can consider such factors as the purpose of the newly enunciated standard, the governmental reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of the particular rule. Johnson v. New Jersey, supra, 384 U.S. at 726-727, 86 S.Ct. 1772. In Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, the Supreme Court declined to give retroactive effect to Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which forbade prosecutors and judges to comment adversely on the failure of a defendant to testify in a state criminal trial. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (June, 1967) the Supreme Court, applying the threefold criteria more specifically enunciated in Johnson, 388 U.S. at 297, 87 S.Ct. 1967, denied retroactive application to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18" }, { "docid": "12972093", "title": "", "text": "give recognition to the Douglas rule even though Bosler’s appeal had evidently been submitted before Douglas was decided. The decision in Douglas was announced March 18, 1963, three weeks prior to the date (April 8, 1963) the Missouri Supreme Court filed its opinion in Bosler’s case. An analysis of the Supreme Court opinions dealing with prospective or retroactive applicability of constitutional decisions points unmistakably to the proposition that the Douglas rule must be applied to cases pending on direct review at the time it was rendered. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court held that the exclusionary rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), does not apply to convictions which had become final before its rendition. However, as the Court observed in Linkletter, “that decision [Mapp] has also been applied to cases still pending on direct review at the time it was rendered.” Id. at 622, 85 S.Ct. at 1734. In footnote 4, the Court cites in support of the quoted statement Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Each of these decisions applied the Mapp exclusionary rule to convictions still pending on appeal at the time of the Mapp decision. As recent as June 20, 1966 the Supreme Court held in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, that Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (June 13, 1966), are not to be applied retroactively. More specifically, the Court held that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of the Escobedo decision, and that Miranda applies only to those cases in which the trial began after it" }, { "docid": "22927719", "title": "", "text": "fell under the exception to Miranda covering “general on-the-scene questioning.” Alternatively we held that such pre-custody activity was harmless error because the defendant subsequently confessed to the crime. It is certainly difficult to see how this case could have applied to Chapman’s case, since the prosecutor asked if Chapman had said anything after his arrest. . The Court has held that certain new rules are to be retroactive only with respect to all cases then subject to direct review. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) [non-retroactivity of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1964) ]; Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) (non-retroactivity of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106); O’Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966) (where petitioner’s conviction was not final on date of Griffin, prospectivity of Griffin did not preclude its application). These holdings are anomalous, however. All new constitutional requirements were presumed fully retroactive until Linkletter, which was the Court’s first assertion of its power to limit constitutional doctrine to prospective application. Thus, Linkletter and Tehan established a non-retroactivity limited to convictions that had become final by the time of Mapp and Griffin, respectively, simply because decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases on direct appeal on the date of the latter decision. See Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 1780, 16 L.Ed.2d 882 (1966). After Linkletter and Tehan, the Court moved the relevant date of application of prospective rules first to the date of trial, in Johnson v. New Jersey, supra, [rules of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda were non-retroactive and applied only in trials begun after the date of each decision] and finally to the date of the regulated conduct itself, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18" }, { "docid": "9508558", "title": "", "text": "as Judge Weinstein suggested in his opinion below, if Congress were to adopt a short statute of limitations for those who would apply for retroactive benefits. Nor do we envision a significant impact on the administration of justice. Federal courts may be called upon where a serviceman has been denied an administrative remedy on the ground that his offense was service connected. Although O’Callahan gave little guidance on this question, Relford, while adhering to an ad hoc approach, indicates that the single most important factor will be whether the offense occurred on base. We would expect that a large number of cases will be easily disposed of under this standard. O’Callahan, decided more than two years ago, has yet to stir an influx of litigation which threatens to overwhelm the floodgates. IV. We cannot conclude without discussing the far-reaching institutional considerations which govern and reinforce our conclusion that O’Callahan must be applied retroactively. The litany that judicial decisions must be so applied, traceable to Blackstonian concepts, is firmly embedded in the development of our common law jurisprudence. See generally Mishkin, supra, 79 Harv.L.Rev. at 58-76. Although Linkletter departed from this norm, it did so only “in the interest of justice.” 381 U.S. 618 at 628, 85 S.Ct. 1731. Nevertheless, the Court did apply the exclusionary rule of Mapp v. Ohio to Mrs. Mapp herself and to all cases pending on direct review at the time of the decision, even though to do so did not foster the primary purpose óf Mapp— to deter future searches and seizures in violation of the fourth amendment. With the passage of time, the Court hesitated to apply new decisions even to cases on direct review. For example, the principles of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were applied only to trials commenced after the dates of those decisions. Johnson v. New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Justice Harlan has forcefully characterized this as “[s] imply fishing" }, { "docid": "5327051", "title": "", "text": "L.Ed.2d 33 (1967). In Bosler we held that the right to counsel on appeal declared in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), required Bosler be provided with counsel on his direct appeal to the Missouri Supreme Court since Bosler’s appeal had been pending before that court at the time Douglas was decided. 363 F.2d at 158. The district court felt bound under the rationale of Bosler to apply the Faretta rule to petitioner’s case since Martin’s appeal to the Missouri Court of Appeals was pending at the time Faretta was decided. In Bosler we said: An analysis of the Supreme Court opinions dealing with prospective or retroactive applicability of constitutional decisions points unmistakably to the proposition that the Douglas rule must be applied to cases pending on direct review at the time it was rendered. In Linkletter v. Walker, the Court held that the exclusionary rule announced in Mapp v. Ohio does not apply to convictions which had become final before its rendition. However, as the Court observed in Linkletter, “that decision [Mapp ] has also been applied to cases still pending on direct review at the time it was rendered.” . As recent as June 20, 1966 the Supreme Court held in Johnson v. New Jersey that Escobedo v. State of Illinois and Miranda v. Arizona are not to be applied retroactively. More specifically, the Court held that Escobedo affects only those cases in which the trial began after June 22,1964, the date of the Escobedo decision, and that Miranda applies only to those cases in which the trial began after it was decided on June 13, 1966. Of greater significance to the question before us is the Court’s statement on page 732 of 384 U.S., on page 1780 of 86 S.Ct.: “Decisions prior to Linkletter and Tehan [Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 409, 15 L.Ed.2d 453 ... ] had already established without discussion that Mapp and Griffin [Griffin v. State of California . . . ] applied to cases still on direct appeal at" }, { "docid": "5327053", "title": "", "text": "the time they were announced. . . . ” From the foregoing we conclude that Douglas does apply and therefore controls this case. Bosler’s direct appeal from the conviction had not been decided and was still pending when the Douglas decision was announced. 363 F.2d at 158 (citations omitted). Although a reasonable interpretation of the Bosler decision is that retroactive effect must be given to all new constitutional interpretations involving criminal rights pending appeal at the time the new rule is announced, upon reconsideration we conclude the Supreme Court decisions on this issue require a different analysis. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court held that the new rule pronounced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applying the Fourth Amendment rules pertaining to search and seizure to state trials, and overriding the 12 year old precedent established in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), would not be made retroactive to cases which had reached final judgment. Thus, the Court broke with a long tradition which had held new constitutional decisions to be retroactive. In discussing the retroactive application of new constitutional rules involving criminal rights the Court explained: While the cases discussed above deal with the invalidity of statutes or the effect of a decision overturning long-established common-law rules, there seems to be no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application. It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, “We think the Federal Constitution has no voice upon the subject.” 381 U.S. at 628-29, 85 S.Ct. at 1737 (footnotes omitted). A" }, { "docid": "15432644", "title": "", "text": "constitutional rights guaranteed by the first ten amendments are to be applied to state proceedings by reason of the Fourteenth Amendment. The trial court based its decision in part on cases denying retroactive application to newly determined constitutional principles. We are not squarely confronted with retro-activity here as there has been no authoritative decision by the Supreme Court determining the challenged instruction violates federally guaranteed constitutional rights. However, the reasoning of the Supreme Court cases dealing with retroactivity lends support to the determination that the conviction should not be set aside by reason of the alibi instruction. The cases hold that retroactive application of newly announced constitutional determinations to state prosecutions shall be determined on a case-to-case basis. In a number of situations, retroactive application has been denied. Thus in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, the rule of Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, holding that illegally seized evidence could not be used in a state criminal proceeding, was denied retroactive application. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Court held that the rules of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, with respect to police interrogation without proper warning, should not be applied retroactively. In Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, the Court held that the pronouncement of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, proscribing adverse comment on defendant’s failure to testify by prosecutors and judges in state criminal trials, is not to be given retroactive effect. There are other cases, such as Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (right to counsel), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (coerced confession), where newly adopted constitutional rules have been given retroactive effect. The" }, { "docid": "4541680", "title": "", "text": "that innocent persons have been convicted. New rules which do not have the primary purpose of enhancing the reliability of the fact-finding or truth-determining process, and hence are not directly related to trial integrity, have not been applied retroactively. For instance, the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was held not to be fully retroactive in Linkletter v. Walker, supra. The Court concluded that the prohibition of the use of tainted evidence was essential if effective protection was to be afforded from unreasonable searches and séizures. Since application of the new rules to instances in which an improper search had been consummated before Mapp v. Ohio could neither protect those whose rights had already been breached, 381 U.S. at 637, 85 S.Ct. 1731, nor greatly deter future unlawful searches, it was concluded in Link-letter that Mapp should not be applied to convictions which became final before the rule was announced. Similarly, Tehan v. Shott, supra, denied complete retroactive application to the rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229,14 L.Ed.2d 106 (1965), prohibiting prosecutorial comment on a defendant’s failure to take the stand. The purpose of the rule was to protect the exercise of the privilege against self-incrimination. Past constraint upon the freedom to exercise the privilege was not remediable as the infringement upon the right to be free of compulsion could not be repaired. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), denied any retroactivity to Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), cases also concerned with the privilege against self-incrimination, 384 U.S. at 729-730, 86 S.Ct. 1772. Miranda and Escobedo established rules designed to safeguard a suspect’s right not to implicate himself in a crime involuntarily, by assuring the availability of counsel to an accused person under interrogation. These rules were held inapplicable to any case tried before they were announced partly, at least, because, as with Mapp and" }, { "docid": "5327054", "title": "", "text": "cases which had reached final judgment. Thus, the Court broke with a long tradition which had held new constitutional decisions to be retroactive. In discussing the retroactive application of new constitutional rules involving criminal rights the Court explained: While the cases discussed above deal with the invalidity of statutes or the effect of a decision overturning long-established common-law rules, there seems to be no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application. It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, “We think the Federal Constitution has no voice upon the subject.” 381 U.S. at 628-29, 85 S.Ct. at 1737 (footnotes omitted). A further adjustment to the Court’s approach to retroactivity came in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The Court there held that the rules established in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), would be available only to persons whose trial began after the date those decisions were handed down. Although the Court did not discuss at length its reason for not applying Escobedo or Miranda to cases pending on direct review, the Court did point out that: Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced. On the other hand, apart from the appli cation of the holdings in Escobedo and Miranda to the parties" }, { "docid": "5327055", "title": "", "text": "further adjustment to the Court’s approach to retroactivity came in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The Court there held that the rules established in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), would be available only to persons whose trial began after the date those decisions were handed down. Although the Court did not discuss at length its reason for not applying Escobedo or Miranda to cases pending on direct review, the Court did point out that: Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced. On the other hand, apart from the appli cation of the holdings in Escobedo and Miranda to the parties before the Court in those cases, the possibility of applying the decisions only prospectively is yet an open issue. 384 U.S. at 732, 86 S.Ct. at 1780 (emphasis added) (citations omitted). The rule enunciated in Johnson, contrary to the implication in Bosler, suggested that the question of retroactivity, regardless of whether the court was reviewing a decision on direct appeal, was to be decided on an individual case basis. 384 U.S. at 733, 86 S.Ct. 1772. Subsequently in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), any uncertainty as to what the Supreme Court intended was removed. Williams, which was decided after Bosler, held the rule announced in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), inapplicable to cases pending on direct appeal. The Court, citing Johnson v. New Jersey, supra, observed: In Linkletter v. Walker we declined to give complete retroactive effect to the exclusionary rule of Mapp v. Ohio. Relying on prior cases, we firmly rejected the idea that all new interpretations" }, { "docid": "14958024", "title": "", "text": "any denial of due process in the light of the development of the law.” Id. at 977. Retroactive application of recently-announced constitutional safeguards to the criminally accused is not a matter of course. E. g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1964) (exclusionary rule of illegally-seized evidence under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), held inapplicable to convictions which had become final before Mapp was decided); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) (rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), declaring comment on refusal of the defendant to testify unconstitutional held inapplicable to cases in which judgment of conviction was rendered, availability of appeal exhausted, and the time for petition for certiorari elapsed or was denied before Griffin was decided); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (exclusionary rules of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977 (1964), and of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), held applicable only to cases where the trials have commenced after the respective decisions were announced); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (rules of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), involving right to counsel at identification lineups, held applicable only to cases involving confrontations taking place after Stovall); De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), right to jury trial in serious state criminal cases and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), right to jury trial for serious criminal contempts, held applicable only to trials commencing before the respective cases were decided); Fuller v. Alaska, 393 U.S. 80," }, { "docid": "22927720", "title": "", "text": "however. All new constitutional requirements were presumed fully retroactive until Linkletter, which was the Court’s first assertion of its power to limit constitutional doctrine to prospective application. Thus, Linkletter and Tehan established a non-retroactivity limited to convictions that had become final by the time of Mapp and Griffin, respectively, simply because decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases on direct appeal on the date of the latter decision. See Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 1780, 16 L.Ed.2d 882 (1966). After Linkletter and Tehan, the Court moved the relevant date of application of prospective rules first to the date of trial, in Johnson v. New Jersey, supra, [rules of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda were non-retroactive and applied only in trials begun after the date of each decision] and finally to the date of the regulated conduct itself, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) [identification procedure of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), applied only to confrontations after the date of the decisions]. See also Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969) (Miranda standards do not apply to retrial of defendant whose first trial began prior to date of Miranda decision). Justice Harlan, who argued unsuccessfully for a distinction between cases on direct review and those under collateral attack, offered many a withering dissent. For example, see Justice Harlan’s dissent from Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) [rule of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), extending fourth amendment protection to nontrespassory surveillance would apply only to surveillance conducted subsequent to Katz], . After all, the Court might have remanded so that the Sixth Circuit could consider precisely the question of retroactivity. For" } ]

[ { "docid": "15986802", "title": "", "text": "106 S.Ct. 2505. “The- mere existence of. some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue-of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). II. Standard as Applied: A. Section 1981 and Connecticut Fair Employment Practices Act Claim Plaintiff failed to respond to defendants’ argument that plaintiffs claims under Section 1981 and Conn. Gen.Stat. § 46a-60a et. seq., are barred by the Eleventh Amendment. On this basis alone, the Court could consider these claims abandoned. See, e.g., Taylor v. City of New York, 269 F.Supp.2d 68, 75 (E.D.N.Y.2003) (“Federal courts may deem a claim abandoned when a party moves for summary judgment on one - ground and the party opposing summary judgment fails to address-the argument in any way.”); Bronx Chrysler Plymouth, Inc. v. Chrysler Corp., 212 F.Supp.2d 233, 249 (S.D.N.Y.2002) (Where plaintiff’s summary judgment opposition papers “made no argument in support of [one] claim at all,” the court dismissed the claim as “abandoned.”). In any event, Coger’s Section 1981 and Connecticut Fair Employment Practices Act claims are barred by the Eleventh Amendment. 1. Section 1981 The plaintiff alleges that the State of Connecticut Departments of Public Safety and Department of Administrative Services violated his rights under 42 U.S.C. § 1981. However, “when a person’s rights protected by § 1981 are violated by a state actor (as opposed to a private person), the aggrieved party has a cause of action pursuant to 42 U.S.C. § 1983, not 42 U.S.C. § 1981.” Smith v. Conn. Dep’t of Corr., No. 3:03CV00386, 2003 WL 22834676, *2, 2003 U.S. Dist. LEXIS 21239, *3-4 (D.Conn. Nov. 25, 2003). See also Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (“the" } ]

[ { "docid": "22327827", "title": "", "text": "Discovery to Amend Complaint. Defendants filed a Motion for Entry of Order of Final Dismissal and Entry of Judgment based on Plaintiffs’ failure to file an amended complaint within sixty days of the dismissal. The district court granted Defendants’ motion without oral argument, dismissing the case with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failing to obey the court’s order to file an amended complaint within sixty days. The court also denied Plaintiffs’ motion. Plaintiffs now timely appeal the dismissal of their case with prejudice to this court. II The first issue we must resolve is whether Judge Marshall’s “minute order” was an order, the noncompliance with which justified dismissal under Rule 41(b) of the Federal Rules of Civil Procedure. We review the district court’s dismissal of a complaint pursuant to Rule 41(b) for abuse of discretion. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). Whether or not the “minute order” was an order for purposes of Rule 41(b) is a question of law that we review de novo. We find that Judge Marshall’s minute order, under the circumstances of this case, was an ’“order” within the meaning of Rule 41(b), the noncompliance with which gave Judge Marshall the discretion to dismiss the complaint. Under Ninth Circuit precedent, when a plaintiff fails to amend his complaint after the district judge dismisses the complaint with leave to amend, the dismissal is typically considered a dismissal for failing to comply with a court order rather than for failing to prosecute the claim. See id. at 1260 (“In this case we address whether the district court abused its discretion in dismissing Ferdik’s case because he failed to obey the court’s order requiring him to refile a second amended complaint ... in a timely manner or face dismissal of his case.”) (emphasis added). Judge Marshall dismissed the Plaintiffs’ complaint with prejudice for failing to comply with a court order. See Order Filed on Sept. 21,1998, at 2 (\"When a party fails to comply with any district court order within the time period given for compliance, the district" }, { "docid": "1807499", "title": "", "text": "of the Department of Human Resources, to process their claims. They also sought certification of a class composed of those individuals whose fair employment claims had never been acted on because the state had failed to meet its own deadlines. Three months after the plaintiffs filed suit, the defendant moved to dismiss the action on eleven separate grounds. The district court, concluding that the defendant’s arguments had no merit, denied the motion. See Bennett v. Tucker, No. 83 C 480 (N.D.Ill. Aug. 8, 1983) (memorandum and order). On December 2, 1983, the plaintiffs moved for partial summary judgment on the issue of liability, and for class certification. Director Tucker opposed the plaintiffs’ motion for summary judgment, and filed a cross-motion requesting summary judgment on the same grounds that the court had previously rejected. The case was subsequently reassigned to a new judge, who granted the defendant’s motion for summary judgment on May 8, 1986. The district court held that Cunningham’s federal claim was barred by laches, and that Bennett had no federal claim because it was undisputed that he had failed to file his original claim within the period of time required by state law. See Bennett v. Tucker, 634 F.Supp. 355 (N.D.Ill.1986) (memorandum opinion and order). The plaintiffs moved to alter or amend the judgment. The district court denied the motion, and the plaintiffs appealed. II. Although neither party raised the issue, this case presents a question regarding our jurisdiction. In this case, the dis trict court granted the defendant’s motion for summary judgment without first expressly deciding the plaintiffs’ motion for class certification. This is a violation of Federal Rule of Civil Procedure 23, which requires the district court to decide the question of class certification “as soon as practicable,” Fed.R.Civ.P. 23(c)(1). In Glidden v. Chromalloy American Corporation, 808 F.2d 621 (7th Cir.1986), we held that, under certain circumstances, a district court’s failure to comply with this rule would deprive us of appellate jurisdiction. In Glidden, the district court granted summary judgment, but expressly declined to decide the issue of class certification. See id. at 623. Based on" }, { "docid": "22832351", "title": "", "text": "forth such evidence or why he did not present this evidence in his opposition to Defendants’ motion for summary judgment. Accordingly, we cannot hold that the district erred in not conducting an evidentiary hearing. Finally, Baranowski’s claim that he was denied a jury trial is frivolous. Federal Rule of Civil Procedure 56(c) requires the court to render summary judgment if the appropriate materials on file “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” As this court has explained, “[t]he function of the jury is to try the material facts; where no such facts are in dispute, there is no occasion for jury trial. Thus the right to trial by jury does not prevent a court from granting summary judgment.” Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir.1988). When the district court properly entered summary judgment dismissing Baranowski’s claims, his demand for a jury trial became moot. See id. IV. CONCLUSION For the reasons stated above, we affirm the district court’s grant of summary judgment. AFFIRMED. . Baranowski subsequently moved to dismiss Rabbi Ted Sanders as a defendant, and the motion was granted. . Baranowski's complaint also alleged violations of the Fifth and Ninth Amendments, the Americans with Disability Act, the Rehabilitation Act, and the Texas Religious Freedom Act, as well as a § 1983 retaliation claim. Baranowski has not challenged the district court's ruling on these issues, and we decline to consider these claims any further on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993) (stating that pro se litigants must brief arguments to preserve them for appellate review). . Although Baranowski listed other inmates as additional plaintiffs, the district court concluded that Baranowski was the only plaintiff in this lawsuit. Baranowski has not challenged this ruling on appeal. . Two additional issues raised by Baranowski can be disposed of here. First, Baranowski attempts to appeal the district court's denials of his motions for temporary restraining orders, but it is well established in this circuit that the" }, { "docid": "18943293", "title": "", "text": "SUMMARY ORDER Plaintiffs-Appellants Denis Kaplan and Alan Liebowitz appeal from an award of summary judgment entered by the United States District Court for the Southern District of New York (Seibel, J.) on January 23, 2012, in favor of Defendants-Appellees Old Mutual, PLC, d/b/a Old Mutual Financial Network, Old Mutual (US) Holdings, Inc., Old Mutual U.S. Life Holdings, Inc., Old Mutual (Bermuda), Ltd., Old Mutual Business Services, Inc., Old Mutual U.S. Life Group, and Old Mutual U.S. Life (collectively, “Old Mutual”). Plaintiffs-Appellants brought breach of contract and quasi-contract claims under New York law against their former employer Old Mutual, claiming that Old Mutual breached the terms of a 2006 Long-Term Incentive Plan (“LTIP”). The district court found no issue of material fact as to: (1) whether the parties’ 2003 Letter Agreements, which contained their own LTIP provisions, were final, integrated contracts; and (2) whether Old Mutual “retain[ed] the obligation or right to unilaterally” set new LTIP terms pursuant to the 2003 Letter Agreements, even crediting Plaintiffs-Appellants’ claim that the LTIP provisions in these Agreements constituted mere “placeholders” for later LTIP provisions to be provided. The court determined that Plaintiffs’ claims accordingly failed. On appeal, Plaintiffs-Appellants argue: (1) that the district court erred in failing to give effect to modification procedures enumerated in the 2003 Letter Agreements and allegedly followed by Old Mutual in creating the 2006 LTIP; (2) that the district court erred in granting summary judgment to Old Mutual given questions of fact whether the LTIP provisions in the 2003 Letter Agreements constituted mere placeholders for the “custom LTIP” provided by Old Mutual to Plaintiffs-Appellants in 2006; and (3) that the district court erred in dismissing Plaintiffs-Appellants’ quasi-contract claims. We review de novo a district court’s award of summary judgment, construing the evidence in the light most favorable to the non-moving party. See Fund for Animals v. Kempthorne, 538 F.3d 124, 131 (2d Cir.2008). We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal, which we reference only as necessary to explain our decision to affirm in part and vacate in part." }, { "docid": "7989837", "title": "", "text": "meet certain requirements. Finally, the district court ordered plaintiff to pay a portion of defendant’s attorneys’ fees and costs associated with the motion to dismiss and the motion to compel discovery, which the district court also granted. Davenport v. Riverview Gardens School Dist., No. 4:92CV173 (E.D.Mo. Dec. 14, 1992). A bench trial on plaintiffs discriminatory discharge claim was set for January 19,1993. On January 6, 1993, less than two weeks before trial, plaintiff moved for leave to amend the first amended complaint. By order dated January 14,1993, the district court denied plaintiffs motion for leave to amend and granted defendant’s outstanding motion for summary judgment because plaintiff had failed to come forward with evidence from which a reasonable factfinder could infer unlawful discrimination. Id. (Jan. 14, 1993). Plaintiff filed a motion for reconsideration, which was denied. Plaintiff then timely noticed this appeal. The notice of appeal stated that plaintiff was appealing from the “order [of the district court] granting summary judgment entered on January 14, 1993.” The notice of appeal did not specifically identify the district court’s denial of plaintiffs motion for leave to amend the complaint or the district court’s imposition of discovery-related sanctions as distinct issues on appeal. II. Discussion Plaintiff asserts three arguments on appeal. First, plaintiff argues that the district court erred in granting summary judgment on his Title VII claim of discriminatory discharge because he established a prima facie case of intentional employment discrimination and presented sufficient evidence to create a genuine dispute on the issue of pretext. Second, plaintiff contends that the district court abused its discretion in denying his motion for leave to amend the first amended complaint. Third, he maintains that the district court abused its discretion in granting defendant’s motion for sanctions. A. Title VII claim We review a grant of summary judgment de novo. The question before the district court, and this Court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment" }, { "docid": "20855655", "title": "", "text": "65-68). Specifically, Plaintiff alleges that his card agreement with Defendant incorporated both the requirements of TILA and, by reference, the payment instructions contained on his billing statements, which in turn required Defendant to credit conforming payments received by 6:00 p.m. local time on the date of receipt. (Id. at ¶¶ 66, 68). Defendant breached its agreement, Plaintiff asserts, when it credited his November 2013 payment several days after the date it was received. (Id. at ¶¶ 67, 68). Plaintiffs contract claim rests entirely upon the contention that Plaintiff made a conforming payment and was therefore entitled to have his payment credited on the day of receipt. It fails on this same point. As the Court has discussed, supra, Plaintiff’s payment was nonconforming. Consequently Defendant was not obligated to credit that payment on the date it was received, and Defendant’s breach of contract claim fails on the merits. CONCLUSION For the reasons stated in this Opinion, Defendant’s motion to dismiss Plaintiffs claims for the imposition of a late fee and interest charge in violation of TILA and for breach of contract is converted to a motion for summary judgment, and is GRANTED; its motion in the alternative to strike the start date for proposéd Classes A and B is therefore DENIED AS MOOT. Its motion to dismiss Plaintiffs claim for APR disclosure violations under TILA is DENIED. The Clerk of Court-is directed to terminate the motion at docket entry 16. The parties are directed to appear for an initial pretrial conference on February 23, 2016, at 10:00 a.m. in Courtroom 618 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York. The parties are directed to submit a proposed case management plan and joint status letter no later than February 18, 2016, pursuant to the Court’s Individual Rules of Civil Practice. SO ORDERED. . The majority of the facts contained in this Opinion are drawn from the First Amended Complaint (\"FAC”) (Dkt. #12). They are taken as true for purposes of this motion. See Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.2011) (when reviewing a" }, { "docid": "718722", "title": "", "text": "SUMMARY ORDER Plaintiff-appellant Ernest Francis appeals from a judgment entered on August 5, 2004, in the United States District Court for the District of Connecticut (Kravitz, J.), dismissing Francis’s complaint in this case. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal. We review de novo a district court’s decision dismissing a claim under 28 U.S.C. § 1915(e)(2)(B). See, e.g„ McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). This Court is “free to affirm an appealed decision on any ground which finds support in the record, regardless of the ground upon which the trial court relied.” Leecan v. Lopes, 893 F.2d 1434, 1439 (2d Cir.1990); see, e.g., Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir.1995). In the present case, we affirm the dismissal of Francis’s complaint because the district court lacked subject matter jurisdiction. Although the district court dismissed Francis’s claims on the basis of judicial immunity, that basis was inapplicable because Francis sought only prospective injunctive and declaratory relief. See, e.g., Pulliam v. Allen, 466 U.S. 522, 542-43, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (“We conclude that judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.”). Nonetheless, Francis’s complaint was dismissable because it failed to demonstrate a basis for federal jurisdiction over his claims. The Constitution “limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “In order to meet the ‘case or controversy’ requirement of Article III of the Constitution, a plaintiff must establish that he has standing. The constitutional minimum of standing contains three elements. These are (1) that the plaintiff suffered personal injury or threat of injury; (2) that the injury fairly can be traced to the action challenged ...; and (3) that the injury is likely to be redressed by the requested relief....” Fund for Animals v. Babbitt, 89 F.3d 128, 134 (2d Cir.1996) (citation omitted); see Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. These prerequisites mean" }, { "docid": "23308682", "title": "", "text": "speedy trial requirement, had terminated in his favor. Id. at *3-*4. Covington subsequently filed a motion pursuant to Rules 59(e) and 60(b) to alter and amend or vacate the district court’s judgment. The district court -denied the motion. Covington timely filed a notice of appeal in December 1995, but failed to file an appellate brief in accordance with this Court’s scheduling order. Accordingly, this Court dismissed Covington’s appeal and notified Covington that his case was closed and that he needed to file a motion for reinstatement if he wished to pursue the appeal. Covington filed a motion to reinstate the appeal, which we granted only with respect to that portion of his appeal concerning the dismissal of his false arrest claim. Covington v. City of New York, No. 96-2026 (2d Cir. July 25, 1997). We denied reinstatement as to Covington’s remaining claims on the ground that they were frivolous within the meaning of 28 U.S.C. § 1925(e). Accordingly, we now consider Covington’s arguments only with respect to thé false arrest claim. II. DISCUSSION We review de novo a district court’s grant of summary judgment, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996), whether that grant arose from a motion for summary judgment or from a district court’s conversion of a motion to dismiss into a motion for summary judgment. See Buti v. Perosa, S.R.L., 139 F.3d 98, 101 (2d Cir.1998) (reviewing de novo a grant of summary judgment that was converted from a motion to dismiss). “Summary judgment is proper if, viewing all facts of record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication.” Samuels, 77 F.3d at 35. The court below correctly reasoned that although New York law provides the applicable statute of limitations, federal law governs the question of when a false arrest claim accrues. See Morse v. University of Vt., 973 F.2d 122, 125 (2d Cir.1992). Generally speaking, under federal law “ ‘the time of accrual [is] that point in time when the plaintiff knows or has reason to know of the injury which is the" }, { "docid": "21424209", "title": "", "text": "present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(b). However, although the magistrate relied on the affidavit, he considered only whether the complaint failed to state a claim. His report contains no language discussing the presence or absence of genuine issues of material fact. The district court made no additional findings. On appeal, the Corrections Center does not make the argument that the district court erred when it dismissed the complaint for failure to state a claim. Instead, it argues the dismissal followed a grant of summary judgment, because the district court relied on the affidavit. We will treat the dismissal as one pursuant to Rule 12(b)(6) for failure to state a claim. The language of the report and order reflect that the magistrate treated the motion under this rule. The Corrections Center is not entitled to summary judgment against a pro se litigant merely by attaching an affidavit to its motion. We have observed that courts are reluctant to grant summary judgment for defendants in Title VII cases where the proof is in the hands of the alleged wrongdoers. Lutcher v. Musician’s Local 47, 633 F.2d 880, 882-83 (9th Cir.1980). The Corrections Center did not abandon its Rule 12(b)(6) motion by also moving for summary judgment. 2. Whether Baker’s Complaint Failed To State A Claim A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984). Review is limited to the contents of the complaint. Id. A complaint should not be dismissed under the rule “unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,102, 2 L.Ed.2d 80 (1957). All allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056," }, { "docid": "1878983", "title": "", "text": "restricted diet for one week by Monahan. “Courts in this Circuit routinely have dismissed claims similar to Willey’s, finding that the inmate failed to establish that he experienced a sufficiently serious deprivation for purposes of the Eighth Amendment.” Id. at 677-78. Accordingly, the district court granted the defendants’ motion for summary judgment and dismissed Willey’s Amended Complaint in its entirety. This appeal timely followed. DISCUSSION I. Standard of Review and Summary Judgment Our standards of review are familiar. We review de novo a dismissal under Rule 12(b)(6) for failure to state a claim, and we must reverse if the complaint contains sufficient factual matter that, accepted as true, states a plausible claim for relief. See Cruz v. TD Bank, N.A., 711 F.3d 261, 267 (2d Cir.2013). We employ the same standard of review for a judg ment on the pleadings under Rule 12(c). See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010). And we review de novo a grant of summary judgment under Rule 56, construing all evidence in the light most favorable to the non-moving party. See Ruggiero v. Cty. of Orange, 467 F.3d 170, 173 (2d Cir.2006). We affirm summary judgment only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Because Willey was pro se below, we must interpret his papers liberally “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994); see also Fed.R.Civ.P. 8(e). The parties disagree about the standard we should use to review the decision below. Willey, who is counseled on appeal, argues that we should review the decision as having been made under Rule 12(b)(6) or Rule 12(c) because it “essentially accepted the facts as alleged in Mr. Willey’s complaint, and dismissed each claim for failure to state a claim based on those allegations.” Appellant’s Br. 19. The defendants, by contrast, urge us to review the decision as a routine grant of summary judgment. “The fact that the district court found that certain of plaintiffs allegations, even with" }, { "docid": "1878984", "title": "", "text": "the non-moving party. See Ruggiero v. Cty. of Orange, 467 F.3d 170, 173 (2d Cir.2006). We affirm summary judgment only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Because Willey was pro se below, we must interpret his papers liberally “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994); see also Fed.R.Civ.P. 8(e). The parties disagree about the standard we should use to review the decision below. Willey, who is counseled on appeal, argues that we should review the decision as having been made under Rule 12(b)(6) or Rule 12(c) because it “essentially accepted the facts as alleged in Mr. Willey’s complaint, and dismissed each claim for failure to state a claim based on those allegations.” Appellant’s Br. 19. The defendants, by contrast, urge us to review the decision as a routine grant of summary judgment. “The fact that the district court found that certain of plaintiffs allegations, even with evidentiary support, failed to state viable claims at all does not alter the procedural context of the court’s order — a duly interposed motion for summary judgment by defendants .... ” Appellees’ Br. 12. It is true, as Willey contends, that the district court’s decision rested entirely on its view that Willey’s complaint failed to state a claim for which relief may be granted. Without engaging in any consideration of facts produced by the limited discovery in this case, the district court nominally granted summary judgment under Rule 56 but was in effect granting judgment as a matter of law on the pleadings under Rule 12(c). Cf. Johnson v. Pelker, 891 F.2d 136, 139 n. 2 (7th Cir.1989) (“Without expressly saying so, the district court by granting summary judgment, effectively on the pleadings, treated the motion as one to dismiss under [Rule] 12(b)(6).”). But the distinction is immaterial to our standard of review, which we conduct de novo in either case, and we see no reason why legal issues may not be decided at summary" }, { "docid": "23372748", "title": "", "text": "BALDOCK, Senior Circuit Judge. Appellant Sidney Mariani-Colón (Maria-ni) is a black, Puerto Rican male who was provisionally hired as a federal air marshal, subject to his successful completion of a training program at the Federal Law Enforcement Training Center (FLETC) in Artesia, New Mexico. Appellant failed to graduate from the FLETC program. The Transportation Security Administration (TSA), a division of appellee Department of Homeland Security, ultimately terminated his employment. Appellant brought suit in the United States District Court for the District of Puerto Rico alleging two distinct violations of Title VII. First, appellant alleged he was discriminated against, in the course of his employment, based on his race, sex, color, and national origin. Second, appellant asserted he was discharged in retaliation for his administrative complaints of discrimination. The district court granted summary judgment to TSA on both claims. Appellant raises two issues on appeal. First, appellant challenges the district court’s decision to deem appellee’s statement of uncontested facts admitted because, according to the district court, appellant’s response failed to comply with Local Rule 56(c). Second, appellant appeals the district court’s grant of summary judgment in favor of TSA on his Title VII claims for discrimination and retaliation. We have jurisdiction under 28 U.S.C. § 1291, and affirm. I. At the outset, appellant challenges the district court’s determination that his re sponse to TSA’s motion for summary judgment failed to comply with Local Rule 56(c). Specifically, he challenges the district court’s order deeming appellee’s statement of uneontested facts thereby admitted. See D.P.R.R. 56(c). We review the district court’s application of a local rule for an abuse of discretion. See Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir.2004). A district court may forgive a party’s violation of a local rule, but we will “review deferentially its refusal to do so.” Id. Local Rule 56(c) requires “a party opposing a motion for summary judgment to accept, deny, or qualify each entry in the movant’s statement of material facts paragraph by paragraph and to support any denials, qualifications, or new assertions by particularized citations to the record.” Cabán Hernández v. Philip" }, { "docid": "13773966", "title": "", "text": "reconsideration of the court’s order granting summary judgment for appellees. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal. The district court’s decision to dismiss under Rule 12(b)(6) is reviewed de novo. See Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998). A complaint should not be dismissed on the pleadings “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To satisfy the notice pleading requirements, a complaint need include only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Such a statement must “ ‘give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests,’ ” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99), but it need not plead evidence, see Swierkiewicz, 534 U.S. at 510-11, 122 S.Ct. 992. We review de novo the district court’s grant of summary judgment, construing the evidence in the light most favorable to the nonmoving party. Giordano v. City of New York, 274 F.3d 740, 746 (2d Cir.2001). Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We affirm the dismissal of appellant’s § 1985 claims because they have been waived. Appellant has put forward no arguments why the intracorporate conspiracy doctrine should not bar his conspiracy claim. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”) We reverse the dismissal of appellant’s § 1983 claims because the district court erroneously concluded that appellant’s First Amendment and Equal Protection claims were insufficient as pleaded." }, { "docid": "2283645", "title": "", "text": "the Hartnetts dismissed their suit against Eli Lilly and initiated an action in the Northern District of New York against Schering and two other DEN manufacturers. The district court, however, dismissed the Hartnetts’ suit for lack of diversity. The Hartnetts subsequently filed this action against Schering in the United States District Court for the District of Maryland. Upon finding that the Hartnetts failed to bring their claim within the applicable three year statute of limitations period, the district court granted summary judgment in favor of Schering. The Hartnetts now appeal. SUMMARY JUDGMENT The Hartnetts argue that the district court erred in granting Schering’s motion for summary judgment. Specifically, the Hartnetts contend that under Maryland’s discovery rule their cause of action against Schering did not accrue until 1988 when the Hartnetts first learned that DEN, not DES, was prescribed to Dwyer during her pregnancy. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Appellate courts review contested grants of summary judgment de novo viewing all facts in a light most favorable to the nonmoving party. Jackson v. Kimel, 992 F.2d 1318, 1324 (4th Cir.1993). It is uncontested that a three year statute of limitations applies to this suit. Accordingly, we must affirm the district court’s grant of summary judgment if we find as a matter of law that the cause of action accrued before August 15, 1987 (three years before the Hartnetts initiated the present suit). See Id. STATUTE OF LIMITATIONS Maryland law provides that a “civil action at law shall be filed within three years from the date it accrues.” Md.Cts. & Jud. Proc.Code Ann. § 5-101 (1989). The Maryland courts have held in interpreting this statute that a cause of action accrues in product liability and negligence cases “when the plaintiff knows or should have known that [sjhe has a cause of action.” Pennwalt Corp. v. Nasios, 314 Md. 433, 550 A.2d 1155 (1988) (emphasis added). This legal concept" }, { "docid": "5217558", "title": "", "text": "the seized documents, which [plaintiff] admitted [to] writing, and the testimony of Luther, which Smith deemed credible,” Pilgrim II, 2007 U.S. Dist. LEXIS 7410, at *13-14, 2007 WL 233203, at *5 (internal citations omitted), and (2) plaintiff “has failed to allege facts necessary to support the conclusion that Smith was not fair and impartial,” id. at *15, 2007 WL 233203, at **5-6. This appeal followed. Before this Court, plaintiff offers three main arguments why the judgment of the District Court in favor of defendants should be reversed. First, plaintiff contends that Luther violated his rights under the First Amendment by conducting an investigation of the “Wake Up!” pamphlet and filing an inmate misbehavior report in retaliation for his exercise of free speech. Second, plaintiff argues that Vaughn did not fulfill his obligation to assist him in preparing a defense for the September 1999 disciplinary hearing, in violation of his right to due process of law. Third, plaintiff argues that Smith deprived him of a fair and impartial hearing, in violation of his right to due process of law. DISCUSSION We review de novo a district court’s grant of summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, construing all facts in favor of the non-moving party. See, e.g., Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir.2008). Summary judgment is only warranted upon a showing “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We also review de novo a district court’s dismissal of claims pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Plaintiffs first argument on appeal contests the dismissal of the claims against Luther who, plaintiff asserts, retaliated against him in violation of his First Amendment right to free speech because Luther did not like the content of “Wake Up!”. The prison regulation at issue in" }, { "docid": "17647282", "title": "", "text": "548 (1972), the district court held that the chairpersons had no constitutionally protected property interest and granted summary judgment in favor of the University on the chairs’ Fifth Amendment due process claim. The chairpersons also raised a common law contract claim that the district court dismissed for failure to exhaust administrative remedies. The chairpersons appeal both decisions of the district court, adding a third claim that the University violated the Contract Clause of the Constitution. II. We review de novo the district court’s grant of summary judgment. See Propert v. District of Columbia, 948 F.2d 1327, 1331 (D.C.Cir.1991). We must decide whether a “genuine issue as to any material fact” exists and, if not, whether “the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We give the party against whom summary judgment was granted “the benefit of all reasonable evidentiary inferences that can be drawn in his favor.” Abourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C.Cir.1990) (internal quotation marks and citations omitted). And of significance for this case, we may determine whether summary judgment should be granted on different grounds than those upon which the district court relied. See Doe v. Gates, 981 F.2d 1316, 1322 (D.C.Cir.), cert. denied, — U.S. -, 114 S.Ct. 337, 126 L.Ed.2d 282 (1993). In order to assess whether the government has violated the Fifth Amendment’s Due Process Clause, we engage in a “familiar two-part inquiry”: we must determine whether the plaintiffs were deprived of a protected interest, and, if so, whether they received the process they were due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982); see also Reeve Aleutian Airways, Inc. v. United States, 982 F.2d 594, 598 (D.C.Cir.1993). The district court granted summary judgment for the University after deciding that the chairs had no constitutionally protected property interest to compensation for the 1992 summer term. We find it unnecessary to decide that issue because, even assuming that a property interest existed, we conclude that the chairpersons would have received adequate due process under the" }, { "docid": "22962293", "title": "", "text": "denied Veitch’s claim because the Board agreed to rehear his request for parole. As for Frye, Harris, Hudson, and Jackson, the court held that their claims were time-barred because they filed their claims after the two-year statute of limitations had run. The plaintiffs appealed. After a full review of the record and the benefit of oral argument, we affirm. II. Issues Raised and Standards of Review The appellants raise four issues on appeal. First, the appellants argue that the district court erred in granting summary-judgment for the Board on their ex post facto claim. Second, the appellants argue that the district court erred in granting summary judgment for the Board on their due process claim. Third, the appellants argue that the district court erred in dismissing some claims as untimely. Finally, the appellants argue that the district court erred in denying their motion for in camera review of documents they requested through discovery. We review the district court’s grant of summary judgment de novo, applying the same standard the district court applied. Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1304 (11th Cir.2002). The court must grant summary judgment if the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the non-moving party. Lubet-sky, 296 F.3d at 1304. The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party, who must go beyond the pleadings, and present affirmative evidence to show that a genuine issue of material fact exists. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993). We review de novo the district court’s interpretation and application of the statute of limitations. United States v. Gilbert, 136 F.3d 1451, 1453 (11th Cir.1998)." }, { "docid": "8167341", "title": "", "text": "Order dated November 22, 1993, Magistrate Judge Heckman granted defendants summary judgment pursuant to Fed.R.Civ.P. 56. It is from Magistrate Judge Heckman’s Decision and Order of November 22, 1993 and subsequent judgment that plaintiff now appeals. The parties have been given an opportunity to brief and argue their respective positions. In an appeal from a judgment ordered entered by a Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), the district court must consider the appeal in the same manner as an appeal from a judgment of the district court to the court of appeals. See 28 U.S.C. § 636(c)(4) and Rule 30(b)(2)(B)(v) of the Local Rules for the United States District Court for the Western District of New York. When reviewing a district court’s grant of summary judgment, the court of appeals applies a de novó standard of review, assessing the record in the light most favorable to the non-moving party and applying the same standard as that applied by the district court. See Commercial Union Assurance Co. v. Milken, 17 F.3d 608, 611 (2d Cir.1994). Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. After reviewing the submissions of the parties, hearing oral argument, and reviewing the record in this case de novo, the Court affirms the Judgment ordered entered by Magistrate Judge Heckman on November 30, 1993 for the reasons articulated in her Decision and Order dated November 22, 1993. IT IS SO ORDERED. DECISION AND ORDER HECKMAN, United States Magistrate Judge. All defendants have moved for dismissal of the complaint pursuant to Fed.R.Civ.P. 12 and/or for summary judgment pursuant to Fed.R.Civ.P. 56. The parties have consented to have the undersigned hear and decide these motions, pursuant to 28- U.S.C. § 636(c)(4) (Item 21). For the following reasons, defendants’ motions are granted, and the case is dismissed in its entirety. BACKGROUND Plaintiff is a gynecological oncologist who became a member of the faculty of the School of Medicine at State University of New York at Buffalo [“SUNY”]" }, { "docid": "6809246", "title": "", "text": "be merged with Huntington Clothiers and Shirtmakers,” and that “[o]ur stores will continue to operate under the name of The Custom Shop Shirtmak-ers/Tailors,” with Rawdon becoming President and chief operating officer. The district court refused to allow Nettis to add the new defendants, concluding that plaintiff had failed to provide any basis to believe that the transaction was anything but a purchase of assets, and not a de facto merger. The vacation pay claim then went to a jury trial in which plaintiff was awarded $20,192.50 against Levitt. The district court entered judgment, and plaintiff timely appealed the dismissal of his CEPA claim and the denial of his various attempts to amend his complaint. There is no cross-appeal. Discussion 1. The CEPA Dismissal We review de novo the district court’s decision to dismiss for failure to state a claim upon which relief can be granted. Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000). Such a motion to dismiss may be granted only if, taking as true the allegations pleaded in the complaint and making all reasonable inferences in favor of the plaintiff, “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (quoting Harris v. City of New York, 186 F.3d 243, 250 (2d Cir.1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957))). Neither ground put forward by the district court supports dismissal of appellant’s CEPA claim. First, the New Jersey Supreme Court has now firmly established that CEPA permits claims for retaliation based on an employee’s objections to co-workers’ illegal or fraudulent conduct, even if his employer is not complied in that conduct. Higgins, 730 A.2d at 329, 334-38; accord Delisa v. County of Bergen, 165 N.J. 140, 755 A.2d 578, 581-82 (2000). Second, New Jersey’s highest court has also recently held that, when an employee claims retaliation for objecting to illegal or fraudulent practices, the employee need make no separate showing that “the complained-about activities implicate the public interest.” Estate of Roach" }, { "docid": "13773965", "title": "", "text": "SUMMARY ORDER Plaintiff-appellant Curtis Brown commenced this lawsuit on October 9, 2001, bringing claims under 42 U.S.C. §§ 1981, 1983, and 1985; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. (“Title VII”); New York state law; and common law. (A 21-35). On July 25, 2002, the United States District Court for the Northern District of New York (Scullin, J.) issued a memorandum-decision and order, which dismissed Brown’s section 1983 and 1985 claims pursuant to Fed.R.Civ.P. 12(b)(6), and dismissed with prejudice Brown’s state law claims for intentional torts. On June 8, 2005, the district court granted appellees’ Fed.R.Civ.P. 56 motion for summary judgment on Brown’s remaining claims (§ 1981, Title VII, and New York State Human Rights Law), and denied Brown’s cross-motion for additional time for further discovery. On August 17, 2005, the district court granted Brown’s motion for reconsideration of its order denying his cross-motion for discovery, but upon reconsideration, affirmed the denial of Brown’s cross-motion for discovery. The district court also denied Brown’s motion for reconsideration of the court’s order granting summary judgment for appellees. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal. The district court’s decision to dismiss under Rule 12(b)(6) is reviewed de novo. See Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998). A complaint should not be dismissed on the pleadings “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To satisfy the notice pleading requirements, a complaint need include only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Such a statement must “ ‘give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests,’ ” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d" } ]

[ { "docid": "22851418", "title": "", "text": "any place of public accommodation by any person who owns ... or operates a place of pubic accommodation.” Id. § 12182(a). UConn concedes that, as an educational institution, it meets the definition of public accommodation and is therefore subject to Title III, See id. § 12181(7)(J). The defendant National Board of Medical Examiners also concedes that its services constitute a public accommodation covered by Title III. B. , Rehabilitation Act Provisions Enacted before the ADA, the focus of the Rehabilitation Act is narrower than the ADA’s in that its provisions apply only to programs receiving federal financial assistance. 29 U.S.C. § 794(a) (2000). Section 504 states that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under” any covered' program or activity. Id. Because both UConn and the National Board receive federal funding, they are subject to the provisions of the Rehabilitation Act. In short, the Rehabilitation Act and Titles II and III of the ADA prohibit discrimination against qualified disabled individuals by requiring that they receive “reasonable accommodations” that permit them to have access to and take a meaningful part in public services and public accommodations. See Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir.2003); Felix v. New York City Transit Auth, 324 F.3d 102, 104 (2d Cir.2003) (quoting 42 U.S.C. § 12112(b)(5)(A)) (“The statute - defines ‘discriminate’ to include ‘not making reasonable accommodations [available to a qualified person with a disability] unless [the provider of the service] can demonstrate that the accommodation would impose an undue hardship on [its operations].’ ”). Since the standards adopted by Titles II and III of the ADA are, in most cases, the same as those required under the Rehabilitation Act, see Henrietta D., 331 F.3d at 272, we consider the merits of these claims together. In order for a plaintiff to establish a prima facie violation under ■ these Acts, she must demonstrate (1) that she is a “qualified individual” with a disability; (2) that the" } ]

[ { "docid": "8614779", "title": "", "text": "The State and County cannot discriminate “against mental health patients in the provision of mental health services that they provide only to mental health patients.” Id. at 6. She, therefore, denied the Motion to Amend, because it would be futile. This Court agrees with the Magistrate Judge on the Pfrommer analysis. 2. Count VII: A Title II Claim for Reasonable Accommodation. Upon objection, however, it has become, clear Mr. Buchanan was not seeking to amend the Complaint to allege a traditional disparate treatment Title II claim. He was instead attempting to state a reasonable accommodation claim under Title II. Drawing authority from Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), Mr. Buchanan asserts that to state a Title II reasonable accommodation cause of action, he does not need to produce evidence of a “comparison class, ie., no similarly situated individuals given preferential treatment.” Olmstead, 527 U.S. at 598, 119 S.Ct. 2176. In Olmstead, the United States Supreme Court addressed a claim under Title II of the ADA from mentally disabled individuals who challenged their continued institutionalization, instead of community based mental health care. Rejecting the “comparison class” argument, Olmstead concluded, that “Congress had a more comprehensive view of the concept of discrimination advanced in the ADA.” Id. In further support, Mr. Buchanan cites Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir.2003), cert. denied, 541 U.S. 936, 124 S.Ct. 1658, 158 L.Ed.2d 356 (2004), another Second Circuit case. In Henrietta D., the plaintiffs were indigent New York City residents who suffered from AIDS and other HIV-related illnesses. They claimed New York State and New York City had failed to provide them with adequate access to public benefits and thereby violated various federal and state statutes, including Title II of the ADA. The government defendants in Henrietta D. raised the same argument the Defendants raise here: “The defendants argue that because the plaintiffs have not demonstrated that they are receiving less access than persons without disabilities to the services they seek, they have failed to show that they are ‘denied the benefits of" }, { "docid": "23568198", "title": "", "text": "United States v. Gonzales, 520 U.S. 1 (1997).348 United States v. Menasche, 348 U.S. 528 (1955).349 United States v. Mulheren, 938 F.2d 364 (2d Cir.1991). 391, 392 United States v. Nordic Vill., Inc., 503 U.S. 30 (1992). 337, 349 United States v. Pacheco, 225 F.3d 148 (2d Cir.2000).383 United States v. Regan, 937 F.2d 823 (2d Cir.1991).. 382 United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989).349 United States Nat’l Bank of Oregon v. Independent Ins. Agents of Am. Inc., 508 U.S. 439 (1993). 337, 349 Vandenberg v. Adler, No. 98 Civ. 3544, 2000 WL 342718 (S.D.N.Y. Mar. 31, 2000).386 Vess v. Ciba-Geigy Corp. USA, — F.3d-, No. 01-55834, 2003 WL 203124 (9th Cir. Jan.31, 2003).340 Walker v. Thompson, 288 F.3d 1005 (7th Cir.2002).323 Washington Nat’l Ins. Co. of New York v. Morgan Stanley & Co., No. 90 Civ. 3342, 1999 WL 461796 (S.D.N.Y. July 2,1999).376 Weiner v. Quaker Oats Co., 129 F.3d 310 (3d Cir.1997).355 Weixel v. Board of Educ. of New York, 287 F.3d 138 (2d Cir.2002).331 Wexner v. First Manhattan Co., 902 F.2d 169 (2d Cir.1990).329 Williams v. WMX Techs., Inc., 112 F.3d 175 (5th Cir.1997).326 Zeid v. Kimberley, 973 F.Supp. 910 (N.D.Cal.1997), reversed on other grounds, 201 F.3d 446 (9th Cir.1999) (table).356 Ziemba v. Cascade Int’l Inc., 256 F.3d 1194 (11th Cir.2001) .327 Zucker v. Quasha, 891 F.Supp. 1010 (D.N.J.1995).343 STATE CASES People v. Dozier, 424 N.Y.S.2d 1010 (2d Dep’t 1980).394 STATUTES 15 U.S.C. § 77k. passim § 771.299 § 77o. 299, 314, 351 § 77z-l .337 § 77aa, Schedule A. 381, 383 §§ 78a-78mm.299 § 78i. 299,361 § 78j. 299, 314, 334 § 78m. 299,334 § 78n. 299, 334 § 78p.299 § 78r.299 § 78t . 299,314 § 78t-l .299 § 78u-4. passim §§ 79 et seq .299 §§ 80a-letseq .299 §§ 80b-l et seq.299 26 U.S.C. § 586(d).394 28 U.S.C. § 2072(a).322 Pub.L. No. 107-204 § 804(a), 116 Stat. 745 .294 48 Stat. 74 (1933).349 FEDERAL RULES Fed.R.Civ.P. 8. passim 9. passim 10 . 331, 347 11 .326 12. passim 15 . 356,397 54 .323 84 . 323,328 App. Form 9 ." }, { "docid": "8614780", "title": "", "text": "from mentally disabled individuals who challenged their continued institutionalization, instead of community based mental health care. Rejecting the “comparison class” argument, Olmstead concluded, that “Congress had a more comprehensive view of the concept of discrimination advanced in the ADA.” Id. In further support, Mr. Buchanan cites Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir.2003), cert. denied, 541 U.S. 936, 124 S.Ct. 1658, 158 L.Ed.2d 356 (2004), another Second Circuit case. In Henrietta D., the plaintiffs were indigent New York City residents who suffered from AIDS and other HIV-related illnesses. They claimed New York State and New York City had failed to provide them with adequate access to public benefits and thereby violated various federal and state statutes, including Title II of the ADA. The government defendants in Henrietta D. raised the same argument the Defendants raise here: “The defendants argue that because the plaintiffs have not demonstrated that they are receiving less access than persons without disabilities to the services they seek, they have failed to show that they are ‘denied the benefits of the services .... of a public entity ... by. reason of their disability.’ ” Henrietta D., 331 F.3d at 272 (citing 42 U.S.C. § 12132) (emphasis in original). Henrietta D. concluded a Title II plaintiff who wishes to proceed on a reasonable accommodation theory is not required to establish disparate impact. Id. at 273. In doing so, Henrietta D. stated it was following other circuits arid “the suggestions of the Olmstead plurality.” Id. One circuit Henrietta D. cited was the First Circuit. In Bailey v. Georgian-Pacific Corp., 306 F.3d 1162 (1st Cir.2002), the First Circuit described Title I of the ADA: “In addition to forbidding disparate treatment of those with disabilities, the ADA makes it unlawful for an employer to fail to provide reasonable accommodations for the known physical or mental limitations of otherwise qualified individuals with disabilities ...Bailey, 306 F.3d at 1166; Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 n. 9 (1st Cir.2000) (“The ADA does more than prohibit disparate treatment. It also imposes an affirmative obligation to provide reasonable accommodation to" }, { "docid": "6065167", "title": "", "text": "access requirements and not the integration mandate. See Henrietta D., 331 F.3d at 272-73; Rodriguez v. City of New York, 197 F.3d 611, 618-19 (2d Cir.1999); Doe v. Pfrommer, 148 F.3d 73, 81-83 (2d Cir.1998); Lincoln Cercpac v. Health & Hosps. Corp., 147 F.3d 165, 167-68 (2d Cir.1998); Leocata v. Wilson-Coker, 343 F.Supp.2d 144, 155 (D.Conn.2004). . I infer that the discharge treatment plan from the hospital included community reintegration because plaintiffs’ follow-up statement is that his treatment plan was changed, eliminating the community reintegration aspect of his prior plan, shortly after his arrival at the nursing home. . \"Pl. Mem.” refers to Plaintiffs' Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the First Amended Complaint, submitted on November 16, 2007, Docket Entry 82. . The relevant FERPA section, 20 U.S.C. § 1232g(b)(1), at issue in Gonzaga provides: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization. Gonzaga, 536 U.S. at 279, 122 S.Ct. at 2273. . The section at issue in Wilder provided a State plan for medical assistance must— provide ... for payment ... of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State ...) which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services ... and to assure that individuals eligible for medical assistance have reasonable access ... to inpatient hospital services of adequate quality. Wilder, 496 U.S. at 502-503, 110 S.Ct. at 2514 (quoting 42 U.S.C. § 1396a(a)(13)(A) (1982 ed., Supp. V)). . The section at issue provides: \"No State or local statute or regulation, or other State" }, { "docid": "2695198", "title": "", "text": "Id. ¶ 61 (emphasis in original). . Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 145 (2d Cir.2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct 99, 2 L.Ed.2d 80 (1957)). . Levitt v. Bear Steams & Co., Inc., 340 F.3d 94, 101 (2d Cir.2003) (quotation marks and citations omitted). . See Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir.2002). . See id. at 152-53; see also In re Initial Public Offering Sec. Litig., 241 F.Supp.2d 281, 331 (S.D.N.Y.2003). . Ganino v. Citizens Utilities Co., 228 F.3d 154, 167 n. 8 (2d Cir.2000) (citing cases). Accord In re AOL Time Warner, Inc. Sec. and ERISA Litig., No. 02 Civ. 5575, 2004 WL 992991, at *38 n. 61 (S.D.N.Y. May 5, 2004). . Lawrence v. Cohn, 325 F.3d 141, 147 (2d Cir.2003) (quoting Ganino, 228 F.3d at 161 (citing cases)). . Ganino, 228 F.3d at 168 (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)). . Rule 9(b) provides that ”[i]n all averments of fraud or mistake, the circumstances concerning fraud and mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind may be averred generally.” See also In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69-70 (2d Cir.2001) (applying Rule 9(b) standard to securities fraud claims). . Pub.L. No. 104-67, 109 Stat. 737 (1995). See Novak v. Kasaks, 216 F.3d 300, 306 (2d Cir.2000). . 15 U.S.C. § 78u-4(b)(1)(B). . Rombach v. Chang, 355 F.3d 164, 172 (2d Cir.2004) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). . Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995). . McMahan & Co. v. Wherehouse Entm’t, Inc., 900 F.2d 576, 579 (2d Cir.1990). Accord High View Fund, L.P. v. Hall, 27 F.Supp.2d 420, 425 (S.D.N.Y.1998) (\"the central issue ... is not whether the particular statements taken separately, were literally true, but whether defendants’ representations, taken together and in context, would have misl[ed] a reasonable investor about the nature of the [securities].”)" }, { "docid": "6231009", "title": "", "text": "Noble counters that unauthorized hours are not entered into the computer, nor are employees compensated for them. See PL Reply at 5 n. 3 (citing 2/12/03 Deposition of Bashar Omar, General Manager for Healthy Pleasures (\"Omar Dep.”), Ex. C to Declaration of Karl J. Stoecker in Support of Plaintiff’s Motion for Class Certification (\"Stoecker Decl.”) at 58 and 2/26/03 Deposition of Maribel Garcia, Employee for Healthy Pleasures, Ex. D. to Stoecker Deck at 14-16). . Compl. ¶ 28. . Pl. Mem. at 6. . See Fed.R.Civ.P. 23. . In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 133 (2d Cir.2001) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). . In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 504 (S.D.N.Y. 1996) (citing Korn v. Franchard Corp., 456 F.2d 1206, 1208-09 (2d Cir.1972)). . Dodge v. County of Orange, 208 F.R.D. 79, 87 (S.D.N.Y.2002) (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). . See Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y.2000). . See In re Indep. Energy Holdings PLC Sec. Litig., 210 F.R.D. 476, 478 n. 5 (S.D.N.Y.2002). . Pecere, 194 F.R.D. at 69 (quoting Labbate D’Alauro v. GC Servs. Ltd., 168 F.R.D. 451, 454 (E.D.N.Y.1996)); see also Daniels v. City of New York, 198 F.R.D. 409, 413 n. 5 (S.D.N.Y.2001) (noting that the court need not rely on bare allegations but \"may consider the range of proof necessary to support class certification\"). . See Visa Check, 280 F.3d at 138; see also Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir.2000); Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996) (explaining that \"a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues”). . Dunnigan v. Metropolitan Life Ins. Co., 214 F.R.D. 125, 135 (S.D.N.Y.2003) (quoting Zapka v. Coca-Cola Co., No. 99 Civ. 8238, 2000 WL 1644539, at *2 (N.D.Ill. Oct.27, 2000)). . See In re Methyl Tertiary" }, { "docid": "6065166", "title": "", "text": "every three months. Id. § 1396r(b) (3) (C)(ii). . Section 504 provides: No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794(a). . See also 28 C.F.R. § 41.519(d) (integration regulation pursuant to Section 504); 45 C.F.R. § 84.4(b)(2) (same). Agency regulations should be given substantial deference in interpreting a statute. See Olmstead, 527 U.S. at 597-98, 119 S.Ct. at 2185-86. . \"Def. Mem.” refers to the Memorandum of Law in Support of Defendants' Motion to Dismiss the First Amended Complaint, submitted on September 18, 2007, Docket Entry 74. . The cases cited by defendants in their memorandum and letter, Def. Mem. 21, 24-25, Def. Letter, are inapposite as they interpret the ADA’s reasonable accommodation and equal access requirements and not the integration mandate. See Henrietta D., 331 F.3d at 272-73; Rodriguez v. City of New York, 197 F.3d 611, 618-19 (2d Cir.1999); Doe v. Pfrommer, 148 F.3d 73, 81-83 (2d Cir.1998); Lincoln Cercpac v. Health & Hosps. Corp., 147 F.3d 165, 167-68 (2d Cir.1998); Leocata v. Wilson-Coker, 343 F.Supp.2d 144, 155 (D.Conn.2004). . I infer that the discharge treatment plan from the hospital included community reintegration because plaintiffs’ follow-up statement is that his treatment plan was changed, eliminating the community reintegration aspect of his prior plan, shortly after his arrival at the nursing home. . \"Pl. Mem.” refers to Plaintiffs' Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the First Amended Complaint, submitted on November 16, 2007, Docket Entry 82. . The relevant FERPA section, 20 U.S.C. § 1232g(b)(1), at issue in Gonzaga provides: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein" }, { "docid": "2695197", "title": "", "text": "See id. . See id. ¶ 50 (emphasis added). . See id. . See id. . Id. ¶51. . See id. V 52. . See id. ¶ 53. . See id. ¶ 54. . See zd. ¶ 53. . Id. ¶ 24; see also id. ¶¶ 23, 37-38 (discussing the Company’s plan to focus more on generic drug manufacture going forward). Plaintiffs allege that GeoPharma began 2004 with \"only” $920,500 in cash, an amount that they imply was insufficient to achieve its goals. See id. ¶ 24. .See id. ¶¶ 25-32. . Id. ¶ 32. Each of the three financing arrangements had different standards for when GeoPharma could exercise the conversion feature. See id. ¶ 30 (term note, convertible into common stock if that stock trades higher than $7.19/share for five consecutive trading days); id. ¶ 27 (warrants, convertible if stock trades higher than $7.26/share for five consecutive trading days); id ¶ 29 (preferred stock, convertible if stock trades at an average higher than $15/share for ten consecutive trading days). . Id. ¶ 62. . Id. ¶ 61 (emphasis in original). . Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 145 (2d Cir.2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct 99, 2 L.Ed.2d 80 (1957)). . Levitt v. Bear Steams & Co., Inc., 340 F.3d 94, 101 (2d Cir.2003) (quotation marks and citations omitted). . See Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir.2002). . See id. at 152-53; see also In re Initial Public Offering Sec. Litig., 241 F.Supp.2d 281, 331 (S.D.N.Y.2003). . Ganino v. Citizens Utilities Co., 228 F.3d 154, 167 n. 8 (2d Cir.2000) (citing cases). Accord In re AOL Time Warner, Inc. Sec. and ERISA Litig., No. 02 Civ. 5575, 2004 WL 992991, at *38 n. 61 (S.D.N.Y. May 5, 2004). . Lawrence v. Cohn, 325 F.3d 141, 147 (2d Cir.2003) (quoting Ganino, 228 F.3d at 161 (citing cases)). . Ganino, 228 F.3d at 168 (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)). ." }, { "docid": "16622338", "title": "", "text": "grounds, 973 F.2d 1033 (2d Cir.1992)). . Id. (quoting Azby Brokerage, Inc. v. Allstate Ins. Co., 681 F.Supp. 1084, 1089 n. 6 (S.D.N.Y.1988)). . Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir.2000) (quotation marks and citation omitted). Accord Beth Israel Med. Ctr. v. Horizon Blue Cross and Blue Shield of N.J., Inc., 448 F.3d 573, 586 (2d Cir.2006). . Rosenfeld v. W.B. Saunders, a Div. of Harcourt Brace Jovanovich, Inc., 728 F.Supp. 236, 249-50 (S.D.N.Y.1990) (quoting Computer Assocs. Int’l, Inc. v. Computer Automation, Inc., 678 F.Supp. 424, 429 (S.D.N.Y.1987), aff'd, 923 F.2d 845 (2d Cir.1990)). . Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 35 (2d Cir.1995). . See Louis Vuitton Malletier v. Dooney & Bourke, Inc. (Vuitton I), 340 F.Supp.2d 415, 436 (S.D.N.Y.2004), vacated in part, Vuitton II, 454 F.3d 108 (2d Cir.2006). . Slayton v. American Express Co., 460 F.3d 215, 226 n. 10 (2d Cir.2006) (quotation marks omitted). . McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007) (quotation marks omitted). . Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Accord Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 101 (2d Cir.2002). . Vacold LLC v. Cerami, No. 00 Civ. 4024, 2002 WL 193157, at *6 (S.D.N.Y. Feb. 6, 2002) (quoting Cortee Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991)). Accord Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir.1999) (\"When a motion to dismiss is granted, the usual practice is to • grant leave to amend the complaint.”). . See Def. Mem. at 4-5. . See Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss (\"Opp. Mem.”) at 6-7. . See Def. Mem. at 9-10. . See id. at 10. . Stadt cites several cases that suggest that breach of contract claims are never preempted because the promise necessary to create an enforceable contract itself constitutes the \"extra element” that saves the claim from preemption. See Logicom Inclusive, Inc. v. W.P. Stewart & Co., No. 04 Civ. 0604, 2004 WL 1781009, at *18 (S.D.N.Y. Aug. 10," }, { "docid": "15111941", "title": "", "text": "accommodation claim, the Second Circuit has made clear that evidence of disparate impact is not needed. See Henrietta D. v. Bloomberg, 331 F.3d at 276-77; see also P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir.1990) (“The Rehabilitation Act does not require all handicapped persons to be provided with identical benefits”). Thus, it will be assumed that plaintiffs are advancing only a reasonable accommodation claim under the Rehabilitation Act. “At this early stage of the litigation, plaintiffs’ complaint is sufficient to withstand dismissal if it alleges that (1) [Ibra-him] has a disability for the purposes of Section 504/ADA, (2)[he] is otherwise qualified for the benefit that has been denied, and (3)[he] has been denied the benefit by reason of [his] disability.” Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 146-47 (2d Cir.2002). The DOE, relying upon Doe v. Pfrommer, 148 F.3d 73 (2d Cir.1998), argues that the Rehabilitation Act claims should be dismissed “[w]hen, as in this case, plaintiffs are in essence challenging the adequacy of the educational services, and not any illegal discrimination, their claim[s] under the ADA and [S]ection 504 must be dismissed.” (Docket No. 19, p. 21.) The Second Circuit has interpreted its decision ' in Pfrommer as “distinguishing] between (i) making reasonable accommodations to assure access to .an existing program and (ii) providing additional or different substantive benefits.” Wright v. Giuliani,230 F.3d 543, 548 (2d Cir.2000) (citing, inter alia, Pfrommer, 148 F.3d at 83). The former is mandated by the ADA and the Rehabilitation Act; the latter is not. In other words,, while reasonable accommodations must be offered to ensure meaningful access to the program, the statutes do not require that substantial changes be made to the program itself. See J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir.2000) (quoting Alexander v. Choate, 469 U.S. 287, 300 n. 20, 302-06, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)). Therefore, under the disability discrimination statutes, a plaintiff may challenge access to, but not the content of, the programs at issue. Such is the distinction between claims made under the" }, { "docid": "12321351", "title": "", "text": "5(3). . As the majority points out, the integration requirement of die ADA is co-extensive with that of the Rehabilitation Act. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003). However, section 504 of the Rehabilitation Act, unlike the ADA, “contains no express recognition that isolation or segregation of persons with disabilities is a form of discrimination.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600 n. 11, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999): Thus, whether the Rehabilitation Act encompasses claims alleging the \"unjustified institutional isolation of persons with disabilities” is an open question, id. at 600, 119 S.Ct. 2176, but one that does not require resolution for purposes of this appeal. . The state argues on appeal that the adult care homes at issue in this case are not \"institutions” within the meaning of the ADA. As the district court did not consider this issue, that court is the appropriate forum before which the issue should be addressed. The district court should determine in the first instance whether adult care homes in North Carolina are sufficiently segregated from society that they are properly considered \"institutions\" within the meaning of the ADA. See Olmstead, 527 U.S. at 600, 119 S.Ct. 2176 (focusing on institutional confinement and segregation as primary considerations); see also 42 U.S.C. § 12101(a)(2) (discussing congressional concern over isolation and segregation of individuals with disabilities); see generally Michel Foucault, History of Madness 44-77 (Jean Khalfa ed., Jonathan Murphy & Jean Khalfa trans., Routledge 2006) (1961) (discussing the societal shift to confinement and exclusion of persons with mental disabilities). I therefore assume, only arguendo, that the adult care homes are institutions for purposes of this opinion. . This approach has been strongly called into question. See M.R., 697 F.3d at 713-20 (Bea, J., dissenting from the denial of rehearing en banc). A \"fundamental reality of our democracy” is the fact that limited revenue requires limited spending. Id. Elected state legislators, who are accountable to their constituents, must decide how to balance spending with revenue. Those decisions should not be lightly cast aside by spending mandates" }, { "docid": "16622337", "title": "", "text": "(quoting Independence Disc. Corp. v. Bressner, 47 A.D.2d 756, 365 N.Y.S.2d 44, 46 (2d Dep't 1975)), vacated on other grounds, 344 F.3d 184 (2d Cir.2003). . See Briarpatch Ltd. v. Geisler Roberdeau, Inc., 148 F.Supp.2d 321, 328 (S.D.N.Y.2001). . Flickinger v. Harold C Brown & Co., Inc., 947 F.2d 595, 599 (2d Cir.1991) (quotation marks and citation omitted). . Faulkner v. Arista Records LLC, 602 F.Supp.2d 470, 482 (S.D.N.Y.2009) (citation omitted). . Poon v. Roomorama, LLC, No. 09 Civ. 3224, 2009 WL 3762115, at *3 (S.D.N.Y. Nov. 10, 2009) (citation omitted). . IMG Fragrance Brands, LLC v. Houbigant, Inc., 679 F.Supp.2d 395, 411 (S.D.N.Y.2009) (quotation marks and citation omitted). . N.Y. Gen. Bus. Law § 349(h), (a). See also Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 344, 704 N.Y.S.2d 177, 725 N.E.2d 598 (1999). . Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000). . Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (quoting Bristol-Myers Squibb Co. v. McNeil-P.P.C, Inc., 786 F.Supp. 182, 215 (E.D.N.Y.), vacated in part on other grounds, 973 F.2d 1033 (2d Cir.1992)). . Id. (quoting Azby Brokerage, Inc. v. Allstate Ins. Co., 681 F.Supp. 1084, 1089 n. 6 (S.D.N.Y.1988)). . Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir.2000) (quotation marks and citation omitted). Accord Beth Israel Med. Ctr. v. Horizon Blue Cross and Blue Shield of N.J., Inc., 448 F.3d 573, 586 (2d Cir.2006). . Rosenfeld v. W.B. Saunders, a Div. of Harcourt Brace Jovanovich, Inc., 728 F.Supp. 236, 249-50 (S.D.N.Y.1990) (quoting Computer Assocs. Int’l, Inc. v. Computer Automation, Inc., 678 F.Supp. 424, 429 (S.D.N.Y.1987), aff'd, 923 F.2d 845 (2d Cir.1990)). . Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 35 (2d Cir.1995). . See Louis Vuitton Malletier v. Dooney & Bourke, Inc. (Vuitton I), 340 F.Supp.2d 415, 436 (S.D.N.Y.2004), vacated in part, Vuitton II, 454 F.3d 108 (2d Cir.2006). . Slayton v. American Express Co., 460 F.3d 215, 226 n. 10 (2d Cir.2006) (quotation marks omitted). . McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007) (quotation marks omitted). . Foman v. Davis," }, { "docid": "10127253", "title": "", "text": "a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, Section 504 provides that “[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance —” 29 U.S.C. § 794(a). Claims under Title II of the,, ADA and Section 504 “are analyzed identically.” Preston v. Hilton Cent. Sch. Dist., 876 F.Supp.2d 235, 241 (W.D.N.Y.2012) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003)). To establish a prima facie case of discrimination under the ADA or Section 504, a plaintiff must show “(1) that [he] is a qualified individual with a disability; (2) that the defendants are subject to [the pertinent statute]; and • (3) that [he] was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or was otherwise discriminated against by defendants, by reason of [his] disability.” Preston, 876 F.Supp.2d at 241 (quoting Harris v. Mills, 572 F.3d 66, 74 (2d Cir.2009)). “A plaintiff may recover money damages under the ADA or Section 504 by showing a statutory violation resulted from ‘deliberate indifference’ to the rights secured the disabled by those statutes.” K.M. ex rel. D.G., 381 F.Supp.2d at 358 (citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 115 (2d Cir.2001)); see Bartlett v. N.Y. State Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir.1998) (intentional discrimination under the Rehabilitation Act may be inferred from “at least deliberate indifference to the strong likelihood that a violation of federally protected rights will” occur), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999). The Board does not disputé that Doe is a qualified individual with a disability or that the Board is subject to the ADA and Section 504. Instead, the Board argues that the amended complaint does not “support a claim of intentional discrimination, animus or deliberate indifference to plaintiffs status" }, { "docid": "22847048", "title": "", "text": "from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a) (2000). As the District Court correctly noted, “[although there are subtle differences between these disability acts, the standards adopted by Title II of the ADA for State and local government services are generally the same as those required under section 504 of federally assisted programs and activities.” Henrietta D., 119 F.Supp.2d at 206 (internal quotation omitted). Indeed, unless one of those subtle distinctions is pertinent to a particular case, we treat claims under the two statutes identically. See Weixel v. Bd. of Educ., 287 F.3d 138, 146 n. 6 (2d Cir.2002); Rodriguez, 197 F.3d at 618 (“Because Section 504 of the Rehabilitation Act and the ADA impose identical requirements, we consider these claims in tandem.”); Cerepac v. Health & Hosps. Corp., 147 F.3d 165, 167 (2d Cir.1998). None of the distinctions between the two statutes is relevant here. Accordingly, the District Court properly “considered the] ... ADA and Rehab Act claims together,” Henrietta D., 119 F.Supp.2d at 206, and we do so as well. In order to establish a violation under the ADA, the plaintiffs must demonstrate that (1) they are “qualified individuals” with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs’ disabilities. See Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.1998). Additionally, to establish a violation under the Rehabilitation Act, a plaintiff must show that the defendants receive federal funding. Id. The defendants concede that the plaintiffs are qualified individuals with disabilities, that the defendants receive federal funding, and that the city defendants are subject to both the ADA and the Rehabilitation Act. The defendants deny, however, that plaintiffs have proven that they have been discriminated against because of their disability as that concept is defined under the ADA and Rehabilitation Act. The defendants argue that because the" }, { "docid": "12170022", "title": "", "text": "343 N.E.2d 278 (1975)). . Savino v. City of New York, 331 F.3d 63, 76 (2d Cir.2003) (quoting Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.1994)). . See Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (1984). . Savino, 331 F.3d at 77. . Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773, 876 N.E.2d 1189 (2007). . Id. at 80, 845 N.Y.S.2d 773, 876 N.E.2d 1189. . Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir.2002). . See Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir.2000). . Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir.2004) (citing D’Amico v. Christie, 71 N.Y.2d 76, 87, 524 N.Y.S.2d 1, 518 N.E.2d 896 (1987)) (quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791, 793 (2d Dep't 1997)). . Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993). . Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). . Wiener v. Unumprovident Corp., 202 F.Supp.2d 116, 122 (S.D.N.Y.2002) (quoting Restatement (Second) of Torts § 46 cmt. j (1965)). . Comply ¶ 139. . Defendants’ Memorandum of Law in Support of Their Motion for Judgment on the Pleadings (“Def. Mem.”) at 4 (citing Compl. ¶ 134). . Compl. V 134. . Def. Mem. at 5 (citing Arizona v. Young-blood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). . Id. (quoting Youngblood, 488 U.S. at 59, 109 S.Ct. 333). . See Youngblood, 488 U.S. at 58, 109 S.Ct. 333 (\"[UJnless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”). Cf. Dukes v. City of New York, 879 F.Supp. 335, 343 (S.D.N.Y.1995) (\"The mere assertion of an alibi, and even the failure to investigate such an alibi to plaintiff's satisfaction, does not overcome" }, { "docid": "23568197", "title": "", "text": "Stevelman v. Alias Research, Inc., 174 F.3d 79 (2d Cir.1999) .365 Stone Motor Co. v. General Motors Corp., 293 F.3d 456 (8th Cir.2002).324 372, 373, 374, 375, Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87 (2d Cir.2001) passim Sullivan & Long, Inc. v. Scattered Corp., 47 F.3d 857 (7th Cir.1995)..... 387, 389 Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6 (1971) .387 322, 323, 333, 340, 342, pas- Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). sim T.H.C., Inc. v. Fortune Petroleum Corp., Nos. 96 Civ. 2690-91, 1999 WL 182593 (S.D.N.Y. Mar.31, 1999) .386 T.J. Raney & Sons v. Fort Cobb, Okla. Irrigation Fuel Auth., 717 F.2d 1330 (10th Cir.1983).377 Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23 (2d Cir.2002). 324, 346 TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438 (1976).379 United States v. Apfelbaum, 445 U.S. 115 (1980).394 United States v. Charney, 537 F.2d 341 (9th Cir.1976).382 United States v. Clark, 359 F.Supp. 128 (S.D.N.Y.1973).387 United States v. Fisher, 6 U.S. (2 Cranch) 358 (1805).337 United States v. Gonzales, 520 U.S. 1 (1997).348 United States v. Menasche, 348 U.S. 528 (1955).349 United States v. Mulheren, 938 F.2d 364 (2d Cir.1991). 391, 392 United States v. Nordic Vill., Inc., 503 U.S. 30 (1992). 337, 349 United States v. Pacheco, 225 F.3d 148 (2d Cir.2000).383 United States v. Regan, 937 F.2d 823 (2d Cir.1991).. 382 United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989).349 United States Nat’l Bank of Oregon v. Independent Ins. Agents of Am. Inc., 508 U.S. 439 (1993). 337, 349 Vandenberg v. Adler, No. 98 Civ. 3544, 2000 WL 342718 (S.D.N.Y. Mar. 31, 2000).386 Vess v. Ciba-Geigy Corp. USA, — F.3d-, No. 01-55834, 2003 WL 203124 (9th Cir. Jan.31, 2003).340 Walker v. Thompson, 288 F.3d 1005 (7th Cir.2002).323 Washington Nat’l Ins. Co. of New York v. Morgan Stanley & Co., No. 90 Civ. 3342, 1999 WL 461796 (S.D.N.Y. July 2,1999).376 Weiner v. Quaker Oats Co., 129 F.3d 310 (3d Cir.1997).355 Weixel v. Board of Educ. of New York, 287 F.3d 138 (2d Cir.2002).331 Wexner v. First Manhattan" }, { "docid": "7450071", "title": "", "text": "F.3d 137, 144 (2d Cir.2006) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). . See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir.2007) (citing Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir.1997)). . McClellan, 439 F.3d at 144 (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997)). Accord Anderson, 477 U.S. at 249, 106 S.Ct. 2505. . American Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir.2006) (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.2002)). . Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985)). . Big Apple Tire, Inc. v. Telesector Res. Group, Inc., 476 F.Supp.2d 314, 324 (S.D.N.Y.2007) (quoting Alphonse v. State of Connecticut Dep’t of Admin. Servs., No. Civ.3:02CV1195, 2004 WL 904076, at *7 (D.Conn. Apr. 21, 2004)). . Cooper v. State of Connecticut Pub. Defenders Office, 280 Fed.Appx. 24, 24 (2d Cir.2008) (quoting Ahdu-Brisson, 239 F.3d at 466). . Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999). . Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir.2008) (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1989)). . Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997). . Pipkin v. Bridgeport Bd. of Educ., 159 Fed.Appx. 259, 261 (2d Cir.2005) (quoting Schwapp, 118 F.3d at 110). . Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995) (quoting Knight v. United States Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986)). . 42 U.S.C. § 2000e-2 (2003). . Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). . St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Discrimination claims brought pursuant to section 1981 are analyzed under the same framework as those brought under Title VII. See Pierce v. Netzel, 148 Fed.Appx. 47, 49-50 (2d Cir.2005)." }, { "docid": "10127252", "title": "", "text": "were deliberately indifferent, and also because, as discussed below, the amended complaint fails to allege sufficiently that Doe was bullied by other students because of his disability or gender, Doe fails to state claims for violations of the Equal Protection Clause, and I grant Defendants’ motion to dismiss Counts Three and Four. 3. Section 504 and Title II of the ADA (Counts Five and Six) Plaintiffs assert disability discrimination claims against the Board under Title II of the ADA and Section 504 of the Rehabilitation Act, which “protect disabled persons from discrimination, both intentional and unintentional, in the provision of public services.” K.M. ex rel. D.G. v. Hyde Park Cent. Sch. Dist., 381 F.Supp.2d 343, 357 (S.D.N.Y.2005) (citing Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 146 (2d Cir.2002)). Title II of the ADA applies to public entities and provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, Section 504 provides that “[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance —” 29 U.S.C. § 794(a). Claims under Title II of the,, ADA and Section 504 “are analyzed identically.” Preston v. Hilton Cent. Sch. Dist., 876 F.Supp.2d 235, 241 (W.D.N.Y.2012) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003)). To establish a prima facie case of discrimination under the ADA or Section 504, a plaintiff must show “(1) that [he] is a qualified individual with a disability; (2) that the defendants are subject to [the pertinent statute]; and • (3) that [he] was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or was otherwise discriminated against by defendants, by reason of" }, { "docid": "8614781", "title": "", "text": "the services .... of a public entity ... by. reason of their disability.’ ” Henrietta D., 331 F.3d at 272 (citing 42 U.S.C. § 12132) (emphasis in original). Henrietta D. concluded a Title II plaintiff who wishes to proceed on a reasonable accommodation theory is not required to establish disparate impact. Id. at 273. In doing so, Henrietta D. stated it was following other circuits arid “the suggestions of the Olmstead plurality.” Id. One circuit Henrietta D. cited was the First Circuit. In Bailey v. Georgian-Pacific Corp., 306 F.3d 1162 (1st Cir.2002), the First Circuit described Title I of the ADA: “In addition to forbidding disparate treatment of those with disabilities, the ADA makes it unlawful for an employer to fail to provide reasonable accommodations for the known physical or mental limitations of otherwise qualified individuals with disabilities ...Bailey, 306 F.3d at 1166; Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 n. 9 (1st Cir.2000) (“The ADA does more than prohibit disparate treatment. It also imposes an affirmative obligation to provide reasonable accommodation to disabled employees.”); see also McGary v. City of Portland, 386 F.3d 1259, 1265-66 (9th Cir.2004); Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79 (2d Cir.2004); Bird v. Lewis & Clark College, 303 F.3d 1015, 1020 (9th Cir.2002), cert. denied, 538 U.S. 923, 123 S.Ct. 1583, 155 L.Ed.2d 314 (2003); Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1283 (7th Cir.1996); Dunlap v. Ass. of Bay Area Gov’ts, 996 F.Supp. 962, 965 (N.D.Cal.1998) (... (T)he ADA not only protects against disparate treatment, it also creates an affirmative duty in some circumstances to provide special, preferred treatment, or ‘reasonable accommodation.’). To establish a violation under the ADA, Mr. Buchanan must demonstrate that: 1) he is a “qualified individual” with a disability; 2) the defendants are subject to the ADA; and, 3) he was denied the opportunity to participate in or benefit from the defendants’ services, programs, or activities, or were otherwise discriminated against by defendants, by reason of his disabilities. Henrietta D., 331 F.3d at 272. The inquiry is “not whether the benefits to" }, { "docid": "20163758", "title": "", "text": "federal financial assistance.” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir.2004). Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States, ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). In order to establish a violation under the ADA and Rehabilitation Act, the Plaintiffs must demonstrate that: ■ (1) Tsilimparis is a “qualified individual” with a disability; (2) the IHA is subject to the ADA and the Rehabilitation Act; and (3) that Tsilimparis was “denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or [was] otherwise discriminated against by defendants, by reason of plaintiffs’ disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003); Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.1998). In addition, the Rehabilitation Act requires that the Plaintiffs show that they were denied the benefits “solely by reason” of their disabilities. Pfrommer, 148 F.3d at 82. Here, the IHA does not appear to dispute that, as a federally-funded public housing authority, they are subject to the provisions of the ADA and the Rehabilitation Act. “The relevant portions of the FHA, ADA, and Section 504 [of the Rehabilitation Act] offer the same guarantee that a covered entity, such as a [public housing authority], must provide reasonable accommodations in order to make the entity’s benefits and programs accessible to people with disabilities.” Super v. J. D'Amelia & Assocs., LLC, No. 09-CV-831, 2010 WL 3926887, at *3 (D.Conn. Sept. 30, 2010); see also Wisconsin Comm. Svs., Inc. v. City of Milwaukee, 465 F.3d 737, 746 (7th Cir.2006). Consequently, “Analysis of a reasonable accommodation claim under the three statutes is treated the same”. Id. (citing Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 & n. 4 (2d Cir.2003); Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 603 (4th Cir.1997); Siefken v. Vill. of Arlington Heights, 65" } ]

[ { "docid": "7752634", "title": "", "text": "defendant were logically relevant, and competent within the scope of the rules of cross-examination, they were proper questions.” (Italics ours.) The authorities hereinbefore cited are conclusive that no witness, can, on cross-examination, be asked questions of this nature, nor is such evidence, even if sought to be established by other witnesses, admissible against the defendant. Evidence of former convictions is admissible to effect his credibility, or to establish intent, when intent is material to constitute the offense. The trial judge in his charge to the jury emphasized this evidence by stating: “This evidence (referring to the questions objected to) was offered merely for the purpose of tending to show, as contended by the government, that this man had theretofore been engaged in similar transactions, and from these knew, or should have known, what was being done in this one. That was the purpose of it.” For the error in permitting these questions to be asked, the judgment must be and is reversed. STONE, Circuit Judge. The offense here charged is transporting or causing to be transported in interstate commerce an automobile, knowing it to be stolen. An impor tant element in this crime is the knowledge that the car was stolen. Upon that matter, it is pertinent to show that accused is with knowledge a handler of stolen ears. The testimony here was that accused had, prior to the time of this charged offense, bought four and sold one ear which had been stolen and on which the engine numbers had been changed. This seems to me to have been prejudicial error without some showing that accused knew the cars had been stolen or the numbers changed. Hall v. United States, 150 U. S. 76, 14 S. Ct. 22, 37 L. Ed. 1003; Thompson v. Bowie, 4 Wall. 463, 471, 18 L. Ed. 423; Louisville & N. R. Co. v. McClish, 115 F. 268, 276 (C. C. A. 6th, Day and Lurton). Such- evidence of other similar transactions are admissible to prove knowledge or intent (Bird v. United States, 180 U. S. 356, 359, 21 S. Ct. 403, 45 L." } ]

[ { "docid": "7814856", "title": "", "text": "perjury; and ordered one of his own witnesses not to answer a question asked by government counsel. As a result of these episodes or tirades, the trial judge, out of the presence of the jury, said to appellant: . “I am warning you again that you are not fooling anybody here. This practice that you are indulging in is a whole lot older than you are, and you are making every effort that you can to get your defense in by these statements. “These witnesses are produced here and sworn under oath to give testimony, and they are not required to be insulted by you, and that is just what you are doing with a lot of them, so that you are going to refrain from it or suffer the consequences.” There was no prejudicial hostility shown by the trial judge to appellants or to their witnesses. The jury had before it a case involving thievery of historical documents of national importance, as well as perjury, repeated evasion in her testimony on the part of appellants’ principal witness, appellant Elizabeth Murphy herself, and possession of documents and books that had been stolen from the National Archives and great libraries. Wherever such documents had been stolen, the proof was to the effect that appellants had been there a short time before; and the stolen documents and books were afterward found in their possession. Under all of the evidence, the jury was justified in finding both appellants guilty beyond a reasonable doubt of the charge in the indictment. Claims that the appellants were denied their constitutional right by the Court’s refusal to permit the .issuance of subpoenas to defense witnesses are without any merit whatever. Subpoenas were issued to many witnesses as requested by appellants and the fact that the Marshals in different states were unable to find the witnesses requested, constituted no deprivation of appellants’ rights. Since the foregoing claim of error is so strongly relied upon by appellants on appeal, we feel the complete answer is evidenced in the transcript set forth in the margin. The Court then cited the" }, { "docid": "9684115", "title": "", "text": "the defendant tenders the issue of his reputation the prosecution may ask the witness if she has heard of various incidents in his career. I say to you that regardless of her answer you are not to assume that the incidents asked about actually took place. All that is happening is that this witness’ standard of opinion of the reputation of the defendant is being tested. Is that clear?” In his charge to the jury, the judge said: “In connection with the character evidence in the case I permitted a question whether or not the witness knew that in 1920 this defendant had been arrested for receiving stolen goods. I tried to give you the instruction then that that question was permitted only to test the standards of character evidence that these character witnesses seemed to have. There isn’t any proof in the case that could be produced before you legally within the rules of evidence that this defendant was arrested in 1920 for receiving stolen goods, and that fact you are not to hold against him; nor are you to assume what the consequences of that arrest were. You just drive it from your mind so far as he is concerned, and take it into consideration only in weighing the evidence of the character witnesses.” The questions were of the kind often held proper in examining “character witnesses.\" That being the rule, we see no abuse of discretion in per mitting them to be asked here. Defendant asserts error in putting the question about the 1920 arrest to a witness who had known defendant only since 1932. We cannot agree, for she might have heard rumors of an arrest which happened before she knew him. 3. On direct examination by his own counsel, defendant testified to his conviction in 1927 on a charge of possessing counterfeit watch-dials, but that he had no other trouble since he had been in the United States. On cross-examination, defendant testified that, in 1930, in an application signed by him for a license for vending second-hand jewelry, he had never been arrested for any" }, { "docid": "22130035", "title": "", "text": "There appears to be no direct evidence that Smith knew the cars were stolen, but there is ample evidence from which the jury could have inferred that he had such information. There would be little other use for the preparation and delivery of certificates of titles, plates and a full set of papers on wrecked cars if such documents and equipment were not to be used to facilitate sales of stolen automobiles, in the absence of any showing that there was an actual sale of the wrecked remains of the cars matching the papers. There is other evidence from which the jury could have inferred that Smith knew the cars were stolen such as his alleged phone call to the West Coast to warn the other conspirators. Moreover, Smith was not paid a unit price for the vehicle identification he provided but rather was to be paid half the selling price of the automobiles, a definitely unusual “busi ness” arrangement. The phone call mentioned above provides evidence that he knew the ears had been transported across state lines to California. In any event, once it is shown that a defendant knew stolen cars were involved, the government need not show that he knew they moved in interstate commerce to support a Dyer Act or conspiracy conviction. Donaldson v. United States, 82 F.2d 680 (7 Cir. 1936); Loftus v. United States, 46 F.2d 841 (7 Cir. 1931). In summation, there is sufficient credible evidence connecting Smith with the conspiracy that this court should not reverse the jury’s verdict on appeal. The reviewing court should sustain the verdict of a jury “if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 499, 86 L.Ed. 680 (1941). As stated before, appellant Smith cites some fifty-two points of error, and the most significant of these have been discussed in this opinion and all of the others have been considered and are either frivolous or without enough merit to warrant any discussion. With regard to most of these" }, { "docid": "14816160", "title": "", "text": "character. However, the evidence shows that three government agents saw Cozzo^ at the garage. Although they were unable to identify him by name, with the aid of a photograph they later recognized him as being one of the men at the garage. The defendants, including Cozzo, had been in the garage where boxes were found containing goods that were part of the shipment in question. They participated in moving the van containing the other part of the stolen merchandise out of the garage. Knowledge of the stolen character of goods may be established by circumstantial evidence. United States v. Allegrucci, 258 F.2d 70 (3d Cir. 1958). We hold there was sufficient evidence from which the jury could reasonably conclude that Cozzo participated in the possession of the merchandise knowing it had been stolen. II. FBI agent Grundler testified that he did not recognize Cozzo at the time he saw him at the garage but was able to identify him by name when he saw a photograph in the FBI office. At this point, Cozzo’s attorney on cross-examination asked the witness, “And who gave you the photograph, if anyone?” Grundler answered, “That photograph is available along with many other photographs of known cartage thieves that we keep and — .” Defendants contend this was a voluntary, unresponsive answer to the question, calculated to prejudice them. The court ruled the answer irrelevant, struck it from the record, and instructed the jury to disregard it. Defendants moved for a mistrial. We hold that the district judge correctly denied the motion. The statement was elicited by Cozzo’s counsel; it was responsive to the question. Although the answer was arguably prejudicial, the judge’s admonition to the jury to disregard it was sufficient to prevent whatever harm could have resulted. Carter v. United States, 231 F.2d 232 (5th Cir. 1956). Defendants argue that the judge erred in cutting off cross-examination of agent Grundler; that he should have allowed counsel to diminish the prejudice of the agent’s “voluntary” statement and to place the witness in “a proper .setting with regard to his training and relationship with the" }, { "docid": "22659528", "title": "", "text": "a violation of the same statute but his conviction on this count was reversed by the Court of Appeals and is not here involved. Details appear in the Court of Appeals opinion, 165 F. 2d 732. In ruling on the objection when the question was first asked, the Court said: “. . . I instruct the jury that what is happening now is this: the defendant has called character witnesses, and the basis for the evi dence given by those character witnesses is the reputation of the defendant in the community, and since the defendant tenders the issue of his reputation the prosecution may ask the witness if she has heard of various incidents in his career. I say to you that regardless of her answer you are not to assume that the incidents, asked about actually took place. All that is happening is that this witness’ standard of opinion of the reputation of the defendant is being tested. Is that clear?” In overruling the second objection to the question the Court said: “Again I say to the jury there is no proof that Mr. Michelson was arrested for receiving stolen goods in 1920, there isn’t any such proof. All this witness has been asked is whether he had heard of that. There is nothing before you on that issue. Now would you base your decision on the case fairly in spite of the fact that that question has been asked? You would? All right.” The charge included the following: “In connection with the character evidence in the case I permitted a question whether or not the witness knew that in 1920 this defendant had been arrested for receiving stolen goods. I tried to give you the instruction then that that question was permitted only to test the standards of character evidence that these character witnesses seemed to have. There isn’t any proof in the case that could be produced before you legally within the rules of evidence that this defendant was arrested in 1920 for receiving stolen goods, and that fact you are not to hold against him; nor" }, { "docid": "9684114", "title": "", "text": "George. We therefore conclude that we must reverse as to the second count. Alleged Errors as to the First Count. 1. The defendant called three character witnesses who testified that he had an excellent reputation for “honesty, truthfulness and being a law-abiding citizen.” On cross-examination, they were asked whether they had heard (a) that in 1927 he had been convicted in a New York court and sentenced to pay a fine of $100 or 30 days in jail, and (b) that in 1920 he had been arrested for receiving stolen goods. The judge, out of the jury’s presence, received the assurance of the government’s counsel that defendant had been thus arrested in 1920. The defendant, on the witness stand, had previously admitted the conviction in 1927. The judge, when these witnesses were being questioned, said: “However, I instruct the jury that what is happening now is this: the defendant has called character witnesses, and the basis for the evidence given by those character witnesses is the reputation of the defendant in the community, and since the defendant tenders the issue of his reputation the prosecution may ask the witness if she has heard of various incidents in his career. I say to you that regardless of her answer you are not to assume that the incidents asked about actually took place. All that is happening is that this witness’ standard of opinion of the reputation of the defendant is being tested. Is that clear?” In his charge to the jury, the judge said: “In connection with the character evidence in the case I permitted a question whether or not the witness knew that in 1920 this defendant had been arrested for receiving stolen goods. I tried to give you the instruction then that that question was permitted only to test the standards of character evidence that these character witnesses seemed to have. There isn’t any proof in the case that could be produced before you legally within the rules of evidence that this defendant was arrested in 1920 for receiving stolen goods, and that fact you are not to hold" }, { "docid": "5807162", "title": "", "text": "admissibility of evidence. United States v. Williams, 545 F.2d 47, 50 (8th Cir. 1976). Our reading of the record convinces us that any error which the trial court may have committed in the making of the various evidentiary rulings was harmless. We have also carefully reviewed the record and find the evidence clearly sufficient to sustain the verdict. There was ample evidence from which the jury could find that the jewelry, which Hood admittedly transported from North Dakota to New York, was the same jewelry which had previously been stolen, and that Hood was aware that it had been stolen at the time that he transported it across state lines. The judgment is affirmed. . On March 9, 1977, an indictment was returned against Hood for the interstate transportation of stolen property in violation of 18 U.S.C. § 2314. Because of a defect in that indictment, it was dismissed on the govern-merit’s motion on March 29, 1977. A new indictment was returned on May 25, 1977, charging Hood with the same offense. It was on this indictment that Hood was eventually tried. . Hood cites two incidents in support of his contention that a mistrial should have been declared. First, he cites an incident when a government witness volunteered that he had seen “mug shots” of Hood, thus bringing Hood’s prior criminal record before the jury. However, Hood’s counsel objected to this characterization of the photographs, and the trial court sustained the objection. The court also admonished the jury to disregard the witness’s comment. In the second incident, counsel for the government asked Hood, on cross-examination, whether anyone else had ever been convicted for the Arkansas murders with which Hood had been charged. Hood replied, “Not to my knowledge.” The court then interrupted the proceedings by admonishing the jury: THE COURT: (Interrupting) Members of the jury, evidence relating to other accusations and charges, and questions relating to that, should be considered by the jury only on the issue of the credibility of this witness. In other words, it is not evidence as to whether or not he may or may" }, { "docid": "16238097", "title": "", "text": "certificate of frivolousness. Upon the showing that was made, we found that defendant’s contention that the evidence was insufficient to support his conviction was without merit, and denied appeal on that ground as frivolous. We did, however, conclude that there was sufficient merit in defendant’s elaim that the instructions were prejudicially erroneous to warrant the granting of an appeal for the single purpose of resolving that question. Mr. West was again appointed to represent defendant for purposes of the appeal. Although the question whether the evidence was sufficient to sustain the conviction is not an issue on appeal, a brief resume of the salient facts will assist in a proper understanding of the attack made upon the court’s charge to the jury. From the Government’s evidence, largely circumstantial in nature, it was shown that a new Chevrolet automobile was stolen from an automobile dealer in Mobile, Alabama, between March 31 and April 15, 1960, was transported to Kansas City, Missouri, by defendant, and was there offered for sale by him in the latter part of April, 1960. A tax assessor and a file clerk, both from Baldwin County, Alabama, testified that, on or about April 6, 1960, they dealt with a man, who identified himself as John W. Arnold, for the purpose of issuing a license for the vehicle now found to have been the stolen automobile in question. In their testimony both of these witnesses positively identified defendant as being “John W. Arnold,” the same person who had been issued the Alabama license plates. After attempting to sell the stolen automobile in Kansas City, Missouri, in the latter part of April, defendant was arrested in that city on May 5, 1960, and thereafter was indicted on the charge that resulted in this prosecution. Despite efforts that had been taken to prevent identification of the vehicle, through the hidden body number it was established that the automobile that had been in defendant’s possession in Kansas City was the same automobile that had been stolen in Mobile, Alabama. Defendant did not personally testify and defended on the basis of an alibi." }, { "docid": "9684113", "title": "", "text": "the $5,000 bribe. He did not on that day or at any other time in the Eastern District both offer and give. He merely gave. The offer of July 17 cannot sustain the conviction on count 2. For defendant made that offer in New York City in the Southern District, and the defendant was indicted and tried in the Eastern District. Had that offer been specified in the indictment, defendant, thus warned of the improper venue, would have waived the lack of proper venue by going to trial without interposing an obj ection. The same might have been true if, during the trial, defendant had in some manner been put on notice that the government intended to rely on that New York City offer as a crime, for which he was being tried. But here there was nothing so to notify, him. Indeed, the trial judge, in his charge, told the jury that the issue was whether defendant gave or offered to give, or both, $5,000 to Kratter on July 29 at the Hotel St. George. We therefore conclude that we must reverse as to the second count. Alleged Errors as to the First Count. 1. The defendant called three character witnesses who testified that he had an excellent reputation for “honesty, truthfulness and being a law-abiding citizen.” On cross-examination, they were asked whether they had heard (a) that in 1927 he had been convicted in a New York court and sentenced to pay a fine of $100 or 30 days in jail, and (b) that in 1920 he had been arrested for receiving stolen goods. The judge, out of the jury’s presence, received the assurance of the government’s counsel that defendant had been thus arrested in 1920. The defendant, on the witness stand, had previously admitted the conviction in 1927. The judge, when these witnesses were being questioned, said: “However, I instruct the jury that what is happening now is this: the defendant has called character witnesses, and the basis for the evidence given by those character witnesses is the reputation of the defendant in the community, and since" }, { "docid": "15369827", "title": "", "text": "In fact, the United State Attorney expressed complete surprise. The court denied the motion for mistrial and immediately instructed the jury to ignore Snead’s comment tending to show White’s early background. Ordinarily, the granting or refusing of a motion for mistrial is in the sound discretion of the trial judge, and we find no abuse of such discretion in this instance. Here there was evidence that White had been married, was a widower with two children, and that his aunts by whom he had been reared were respectable persons. Any reference to a training school for boys must have related to a much earlier period of the defendant’s life. Obviously, the question asked Snead was not calculated to elicit such an unexpected response, and the trial judge could well have concluded that such reference to a boys’ training school by this witness would be a matter of small moment to the jury in view of the seriousness of the offense charged and the trial as a whole. It was the Government’s theory, based upon White’s statements and admissions, that he had used a stolen (perhaps two stolen cars) and his own car in making his getaway following the robbery. Mrs. Ada Pfeifer owned a 1958 black and white Ford which had been stolen in March 1958 and recovered after it had been abandoned in Charlotte, North Carolina. Witness Cohen testified that White had told him of stealing the car, operating it by “jumping” the wires, later having a key made and abandoning the car in Charlotte after attempting to sell it in Atlanta, Georgia. This car was again stolen on the night of April 27, 1959, and, following the robbery, was discovered parked at Howard Johnson’s Restaurant in the vicinity of the bank. The Government’s theory is shown in the statement of the United States Attorney to the court and in the presence of the jury, which follows: “It is relevant for this reason, Your Honor. The defendant made several admissions, according to the evidence, that he had planned to use stolen automobiles as getaway cars. The defendant stole this" }, { "docid": "22130034", "title": "", "text": "is no merit to this contention, a rather flagrant breach of paternal loyalty. Positive identification of the defendant was made by both of the principal government witnesses. There is no showing that Frank Smith, Jr., was in the courtroom during these identifications or at any other crucial time. Further, all of the cases cited by appellant on the question of identification, whether affirming or reversing a conviction, stand only for the basic proposition that the question of sufficient identification of the defendant is for the jury. The jury, by its verdict, has decided that this particular Frank Smith was the person identified and that decision has ample support in the evidence. Cf. Smith v. United States, 358 F.2d 695 (5 Cir. 1966), cert. den. 384 U.S. 942, 86 S.Ct. 1463, 16 L.Ed.2d 540. Smith also asserts that there is no showing that he had knowledge that the cars were stolen, that they were to be transported in interstate commerce or that the cars ever crossed the Texas border on their way to California and Nevada. There appears to be no direct evidence that Smith knew the cars were stolen, but there is ample evidence from which the jury could have inferred that he had such information. There would be little other use for the preparation and delivery of certificates of titles, plates and a full set of papers on wrecked cars if such documents and equipment were not to be used to facilitate sales of stolen automobiles, in the absence of any showing that there was an actual sale of the wrecked remains of the cars matching the papers. There is other evidence from which the jury could have inferred that Smith knew the cars were stolen such as his alleged phone call to the West Coast to warn the other conspirators. Moreover, Smith was not paid a unit price for the vehicle identification he provided but rather was to be paid half the selling price of the automobiles, a definitely unusual “busi ness” arrangement. The phone call mentioned above provides evidence that he knew the ears had been transported" }, { "docid": "3086224", "title": "", "text": "to appear. There were no eye witnesses produced by either side. State trooper Stone who came to the scene shortly after the accident and a former State trooper, then in private employment, who arrived prior to Stone, were the only witnesses on behalf of plaintiff regarding the accident. There were no witnesses called by the defense. The ex trooper had taken some pictures of the cars, roadway, etc. These were marked into evidence. Trooper Stone as a witness shown one of said photographs, was asked on direct: “Were you able to determine, Officer, again looking at P-6, whether the skid marks in question shown by this photograph were made by either of the vehicles involved in the accident?” He had answered in part “Yes sir; they were — ■”, when the defense attorney objected, saying “To my mind, your Honor, that is not investigation of an accident; that is rendering expert opinion for purposes of a law suit.” The Court, holding the witness qualified, permitted him to answer a rephrased question to the same effect. Stone was then asked another rephrased question: “Based on your expertise in investigating automobile accidents as a state police officer, and further based on your experience at the scene of this accident, and your conversation with the defendant, do you have an opinion as to the cause of this accident?” The original of that query had been objected to because as the defense attorney argued “It is the ultimate fact that this jury is asked to determine, and without any eyewitness account of what actually occurred, I submit there is insufficient basis to support an opinion.” The rephrased question was objected to “So the record may be consistent, my objection also goes to the rephrased question.” The Court said, “Naturally. Exception granted” and allowed the trooper to answer the question, which he did saying: “The accident was caused by Mr. Canning's failure to stop at the stop sign.” (Emphasis supplied). The trooper testified at considerable length regarding his other conclusions about the accident. For example, on redirect there were the following questions and answers: “Q." }, { "docid": "9877722", "title": "", "text": "LOGAN, Circuit Judge. This is an appeal from a jury conviction of Roy Valentine Gilliland for transportation of a stolen automobile across state lines in violation of the Dyer Act, 18 U.S.C. § 2312. The issues upon appeal relate to the propriety of certain questions asked of Gilliland’s stepson, Billy Tull, who appeared as a defense witness, concerning criminal convictions of Gilliland 14 to 34 years prior to the offense involved in this trial. The federal prosecutors presented their case based principally upon stopping defendant near Guymon, Oklahoma while he was driving a vehicle stolen a few hours earlier in Dumas, Texas. The totality of the government’s evidence was ample to support the jury conviction, in the absence of the error discussed herein. The defense was that Gilliland did not steal the car, but bought it on approval from a purported car salesman in a bar in Oklahoma, with a portion of the consideration being repayment of a gambling debt owed by the salesman to Gilliland. Defendant’s stepson Billy Tull was a defense witness presented as one who had been present at the transfer and who had personally observed much of the paper work in the exchange of title. After Tull had so testified the government attorney initiated his cross-examination as follows: Q How long have you known this Defendant, your step father? A Approximately 11 years. Q As I understand it, you are telling the ladies and gentlemen of the Jury, he is just the kind of man that would not do this thing; is that right? A Yes, sir. Q He is the kind of man who would not steal a car and take it across the state line; it is that correct? A Yes, sir. Q And he is certainly the kind of man who would not forge items like you have in front of you there; is that correct? A Yes, sir. Q He just wouldn’t do that? A No, sir. MR. MILLER: May I approach the bench if the Court please? FOLLOWING PROCEEDINGS HELD AT BENCH OUT OF THE HEARING OF THE JURY: MR. MILLER:" }, { "docid": "23424738", "title": "", "text": "COLEMAN, Circuit Judge: Orser and Parker were charged in the same indictment, composed of two counts. A severance was granted Parker. They were each convicted after separate jury trials and their appeals were heard together at the recent session of this Court in Jacksonville. We therefore decide both cases in one opinion. As to Orser, the government, being required to elect between the two counts, chose to stand on count 1, charging transportation of a stolen Cadillac automobile in interstate commerce from Jekyll Island, Georgia, to Jacksonville, Florida, in violation of Title 18, United States Code, Section 2312. As to Parker, the trial court granted a directed verdict of not guilty as to count 1. The jury found him guilty on count 2, which charged receiving and concealing the same motor vehicle in violation of Title 18, Section 2312, United States Code. I ORSER’S APPEAL Orser was tried first. The prosecution presented strong evidence of guilt. The defendant, represented by counsel, offered no evidence in his own behalf,, and the record shows that the jury returned its verdict after deliberating for fifteen minutes. Upon careful consideration we can see no justification for a reversal of this conviction. Accordingly, it must be affirmed. Orser attacks the Judge's charge to the jury that his unexplained possession of a recently stolen automobile was a circumstance from which the jury could infer his guilt. In support of his position, he cites Bollenbach v. United States, (1946), 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350. For future reference, the carefully drawn charge, which we hereby approve, will be set forth in the margin. In Bollenbach the Supreme Court held that it was reversible error to charge the jury that they should presume guilt under the federal statute from possession of recently stolen securities. After being out for seven hours, the jury reported that it was “hopelessly deadlocked” as to the defendant’s responsibility for the interstate transportation of the securities. One of the jurors asked, “Can any act of conspiracy be performed after the crime is committed ?” Without answering this question, the trial judge" }, { "docid": "6868407", "title": "", "text": "TRIEBER, District Judge. The plaintiff in error, hereafter referred to as the defendant, seeks by this writ of error to reverse a judgment of conviction on an indictment charging him in two counts with the crime of perjury. Although found guilty on both counts and sentenced to imprisonment on each, the confinement is concurrent. Without setting out all the formal allegations in the indictment, the sufficiency of which is not questioned, it charges the defendant, in the first count, with having sworn falsely while a witness in his own behalf in a cause pending in the District Court of the United States for the. District of North Dakota, in which he and another defendant were charged with the crime of larceny from an interstate railroad car. The second count charges him with having sworn falsely, while testifying in the same case, in which he was charged in the second count of the indictment, with having in his possession certain articles which had been stolen from a railroad car in process of transportation in interstate commerce, knowing that they had been feloniously stolen from such a car. Although it is alleged in the assignment of errors that the court erred in denying defendant’s motion to direct a verdict of acquittal at the close of the government’s evidence, and again at the close of all the testimony in the case, the record fails to show that such motions were made at any time in behalf of the defendant; but, as the defendant’s personal liberty is involved, we have considered the assignment that the court erred in refusing to direct a verdict of acquittal at the close of all the testimony. As to the denial of the motion for a directed verdict at the close of the' government’s testimony, even if it had been made, it could not be considered by this court, as it was waived when the defendant introduced testimony in his defense. A careful reading of the testimony satisfies beyond question that, unless the court erred as a matter of law in submitting the cause to the jury, it committed" }, { "docid": "3802566", "title": "", "text": "duty is to regulate and control records of all motor vehicles, transfers and documents existing between sales of motor vehicles. It was conceded that he was qualified to testify as to Department documents and automobile titles. One of the automobiles involved in the government’s proof was a Chevrolet 1958, 4 Dr, F58T179566 Bel Air. The witness was shown Government Exhibit No. 9 in evidence, on its face a Florida title to said car. He said, “Well, the paper itself, I would say is legitimate, but by comparison with other Florida titles I would say that the execution of it was fraudulent.” A little further on he was shown Government Exhibit No. 6 in evidence. He stated it was a “perfectly good New Jersey certificate of ownership or title”. He noted it identified the same automobile as the above mentioned Florida paper and that the person’s name on the title was the one which the Florida title stated to be the purchaser of the motor vehicle. The witness was then handed Government Exhibits in evidence numbers 12, 17 and 21 and asked: “ * * * whether or not you are able to determine the authenticity or lack thereof of these three certificates ?” The witness replied: “These are authentic New Jersey certificates of ownership. However they were stolen at gunpoint.” The defendant’s attorney said, “If it please the Court — ”. The trial judge asked him to “wait a minute” and addressing himself to the remark of the witness stated: “That will be stricken. You just describe what happened, if you are asked the question, and leave off the literary descriptions. You were asked whether they are legitimate. Yes, you said.” The witness answered “The documents themselves are perfectly — ”. The court broke in “that was the only question”. The witness concluding his answer said “— legitimate”. Then the court, addressing the district attorney, said “Proceed Mr. Mangini”. Thereafter, for over a page of the printed record, followed a series of routine identification questions and answers concerning the New Jersey certificates. This concluded, the court asked counsel for the" }, { "docid": "22208036", "title": "", "text": "and a new trial had. As a matter of fact, the petitioners, when attended by counsel, waived a reading of the information and pleaded, not guilty, which was an indication that they already knew what the information was and'that they really suffered no prejudice which would justify a new trial. We agree with the Circuit Court of Appeals in its conclusion that in any view the error was a harmless one. The questions which have been chiefly argued here are, first, the correctness of the refusal of the court to allow the police officer to be cross-examined as to the name of the person who communicated to him the information that the defendants were engáged in transporting liquor in a Buick car; and, second, the question of the existence of probable cause to justify the seizure of the automobile under the circumstances shown. We think that these two questions do not arise, and that the judgment should be affirmed, without regard to the proper answer to them. The results of the search and seizure were shown by the testimony of the chief of police and of the other witnesses without any objection on behalf of the defendants; and thus was disclosed the fact that the defendants had been engaged in transporting a large amount of liquor in the Buick. No motion was.made to strike that evidence out, and no evidence whs introduced to contradict‘what was disclosed by the statements of the chief of police and other witnesses upon this point. The only objection made toward the close of the evidence for the Government was that, when it was proposed to introduce the liquor, it had not been properly identified, but there was ample evidence to show that it had. The motion made thereafter to suppress the liquor as evidence, on the ground that there had been an illegal search, did not include a motion to strike out the evidence of the witnesses as to what occurred when the car was stopped. The objection to the seizure was plainly an after thought. As there was no evidence introduced by the defendants" }, { "docid": "21844793", "title": "", "text": "side was not conclusive on any issue constituted reversible error because no witnesses testified for the defendants. Although sympathetic to some of defendants’ concerns on appeal, we conclude that the grand jury was not used improperly and that neither of the alleged instructional errors were sufficiently prejudicial to merit reversal. I. Factual Background After an initial investigation by the grand jury, Moss, an automobile dealer, and his Virginia corporation, Corvette Center, were indicted along with others for conspiracy regarding the interstate transportation of stolen automobiles. Moss and Corvette Center were also charged with substantive counts concerning the theft and receipt of stolen parts and the sale of stolen automobiles. The defendants were, however, only convicted of selling and conspiracy to sell a stolen 1981 Corvette. The evidence revealed that Moss ordered specific stolen automobiles from Dennis Murray, a Kentucky car thief. Moss ordered and obtained the 1981 Corvette from Murray to combine it with another stolen automobile he had already procured. The purpose of combining these two stolen vehicles was to produce a single saleable automobile that could not easily be traced to any outstanding stolen automobiles being sought by law enforcement officials. Such a process is known as vehicle or salvage “switching,” and for those who regularly engage in this criminal endeavor, it is often very profitable. Although the indictment was returned on May 12, 1983, the trial did not commence until November 7, 1983 because several continuances were granted. After the second trial continuance was granted, the government’s attorney questioned two individuals before the grand jury: Donald Mason, an automobile rebuilder and salvage seller from North Carolina, and Bobby Clark, a North Carolina Division of Motor Vehicles Inspector. This inquiry concerned their apparent involvement in the defendants’ conspiracy to sell stolen automobiles. According to the affidavit of John P. Aider-man, the government’s co-counsel, after the May indictment the government learned that Mason was a possible accomplice or co-conspirator of Moss. Continuing investigation by the FBI revealed that Mason appeared in the chain of title of the stolen Corvette and that he had obtained a “clean” North Carolina title" }, { "docid": "14816161", "title": "", "text": "on cross-examination asked the witness, “And who gave you the photograph, if anyone?” Grundler answered, “That photograph is available along with many other photographs of known cartage thieves that we keep and — .” Defendants contend this was a voluntary, unresponsive answer to the question, calculated to prejudice them. The court ruled the answer irrelevant, struck it from the record, and instructed the jury to disregard it. Defendants moved for a mistrial. We hold that the district judge correctly denied the motion. The statement was elicited by Cozzo’s counsel; it was responsive to the question. Although the answer was arguably prejudicial, the judge’s admonition to the jury to disregard it was sufficient to prevent whatever harm could have resulted. Carter v. United States, 231 F.2d 232 (5th Cir. 1956). Defendants argue that the judge erred in cutting off cross-examination of agent Grundler; that he should have allowed counsel to diminish the prejudice of the agent’s “voluntary” statement and to place the witness in “a proper .setting with regard to his training and relationship with the Government.” Cross-examination is ordinarily limited to matters within the scope of the direct ■examination although it is within the •discretion of the trial judge to permit ■cross-examination on collateral matters. United States v. Lawinski, 195 F.2d 1 (7th Cir. 1952). No error was committed by the district judge in limiting the -cross-examination of the agent nor in •denying the severance motion made by Spatuzza relating to the agent’s statement. III. We find no merit in defendants’ assertion that the district judge ■erred in denying the motion for a mistrial because of the Government’s attempted proof of another offense. The ■evidence showed that the tractor was .stolen shortly before it was driven to the garage. Although it is the general rule that proof of another offense is irrelevant, ■evidence is admissible of other criminal .acts which involve or explain the circumstances of the crime charged. United States v. McCartney, 264 F.2d 628 (7th Cir. 1959). In the instant case the Government attempted to show that a stolen tractor was used to facilitate the possession and transportation" }, { "docid": "6513821", "title": "", "text": "it did not think the judgment should be rendered for failure of the evidence to make out a case for submission to the jury. We are of the same opinion with respect to the record now before us. We come now to Stevens’ third specification of error. As its final clincher witness to prove that the automobile accident was faked, the Government called Jimmy Dazey. After a few questions to provide background, Dazey was asked: “Was that accident a faked or planned wreck?” Dazey answered: “That accident was a — was a wreck; it was a genuine wreck. My car — his car blinded me, I pulled across the white line, Mr. Stevens’ car hit an embankment and rolled with him in the car.” Government counsel asserted surprise and asked leave to cross-examine Dazey as an adverse witness. The request was granted. Government counsel’s questions, Dazey’s answers, and the participation by the court, are thus shown by the record: “Q. [By Mr. Stahley, Government Counsel] Have you made any statement to Postal Inspector Callahan relating to the events you have talked about here just now? “A. I sure did. “Q. I want to hand you this— “A. I would like to make a statement about that statement; may I ? “THE COURT: Yes, sir. “Q. Do you need to read the statement when you are making your statement? “A. No. in 1958 the electric — not electrical inspector, postal inspector came to my house and told me that Inspector Callahan wanted to talk to me in the post office in — uptown in Memphis. I said all right. I had no idea what that was about, the visit, or anything about it. So I went the next day and was carried into the — to his office, or the one that he was using. He right off the bat asked me some questions about my brother-in-law being involved in some wrecks, and I knew nothing of them and indicated so. Well, right off the bat he more or less — he scared me. He said that if I didn’t play" } ]

[ { "docid": "11415875", "title": "", "text": "U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879. The affidavit for search warrant particularly described certain premises known as 310 Twelfth Avenue South, Nashville, Tenn., and alleged on information and belief that there were concealed thereon lottery tickets and other paraphernalia “which will indicate a numbers operation is being conducted on the premises.” We disregard allegations in the affidavit based on hearsay. It was positively stated that the persons engaged in the business “have not paid the special tax” nor registered nor made returns for taxes as required by the statutes. Not all of the transactions described in the affidavit had been witnessed individually by each of the four officers who signed it. While we do not approve of this method of executing an affidavit by the signatures and attestations of several persons, the testimony of the four officers taken together supports the issuance of the warrant. It showed that defendant Phillips was seen in the vicinity of 310 Twelfth Avenue South at regular times of day on several occasions, that he drove to the premises at regular times during the day, that defendant Merritt was seen twice in the same vicinity, that defendants Merritt and Phillips had met on one occasion at which a small package was passed, and that the activity at the premises was that normally carried on in the numbers business. 310 Twelfth Avenue South was the address of an abandoned grocery building in which there were no grocery displays and in which the only activity was the resort to the building by defendants at the two regular times of day normally used for checking wagers and profits in the numbers business. There being no evidence of a legitimate use of the premises, the Commissioner had probable cause to believe that a numbers operation was being carried on. United States v. Bell, D.C., 126 F.Supp. 612, 615. The pattern of defendants’ activities conformed to the known activities of persons in the numbers business and this was one of the circumstances rightly considered. In Worthington v. United States, 6 Cir., 166 F.2d 557, relied on by" } ]

[ { "docid": "4334517", "title": "", "text": "* * and records, relating to the business of accepting wagers.” The agent further stated that he made and supervised an investigation of these premises and had maintained a surveillance for some period prior to the search; that agents under his supervision observed the three defendants enter and leave an apart ment at the Leclaire Avenue address daily, at regular hours, and that they saw defendants on several occasions at the Diversey Avenue address, a building which had lettering on its front window, Goodman Design & Engineering Co. The affidavit listed numerous telephone calls originating from two numbers assigned to the Leclaire Avenue address to Miami, Florida, New Orleans, Louisiana, and other out-of-state places. The agent stated he had been informed that the Miami and New Orleans numbers were registered to or used by known gamblers. We have no difficulty in concluding that the affidavit stated grounds sufficient for the issuance of valid search warrants. United States v. Clancy, 276 F.2d 617 (7th Cir.1960), rev’d on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); Merritt v. United States, 249 F.2d 19 (6th Cir.1957). During the search at the Leclaire Avenue address defendant Monaco appeared. A key taken from him was admitted into evidence. It is not clear from the record whether Monaco gave the key in response to an agent’s request or if it was taken from him. Whether or not the key was voluntarily produced is immaterial. The evidence was legally obtained by the federal agents. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L.Ed. 653 (1950); Clay v. United States, 246 F.2d 298 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957). Defendants contend that special agents of the Intelligence Division of the Internal Revenue Service were not authorized to execute the search warrants. They argue that section 7608(b) of the Internal Revenue Code of 1954 (enacted October 23, 1962) giving investigators of the Intelligence Division authority to execute search warrants postdated the instant search of April 27, 1960. It is clear, however, that section" }, { "docid": "4334518", "title": "", "text": "L.Ed.2d 574 (1961); Merritt v. United States, 249 F.2d 19 (6th Cir.1957). During the search at the Leclaire Avenue address defendant Monaco appeared. A key taken from him was admitted into evidence. It is not clear from the record whether Monaco gave the key in response to an agent’s request or if it was taken from him. Whether or not the key was voluntarily produced is immaterial. The evidence was legally obtained by the federal agents. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L.Ed. 653 (1950); Clay v. United States, 246 F.2d 298 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957). Defendants contend that special agents of the Intelligence Division of the Internal Revenue Service were not authorized to execute the search warrants. They argue that section 7608(b) of the Internal Revenue Code of 1954 (enacted October 23, 1962) giving investigators of the Intelligence Division authority to execute search warrants postdated the instant search of April 27, 1960. It is clear, however, that section 7608(b) was solely a clarification statute and that Internal Revenue agents had implied authority under section 7803(a) to make arrests and to execute search warrants. United States v. Murphy, 290 F.2d 573 (3d Cir.1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff’d, 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960). Admissibility of Telephone Conversations. Defendants assert that the district judge erred in admitting testimony of two agents concerning telephone conversations with unidentified persons who telephoned the apartment at the Leclaire Avenue address during the search of the premises. The evidence shows that the agents were assigned to answer calls made to the three telephones located on the premises. On some occasions in response to the caller’s request to place a bet the agents answered, “Yes,” and hung up. In several instances, however, one of the agents, in response to the caller’s question, “Who is this?”, gave the name of one or the other of the defendants as the person speaking, and the caller then placed" }, { "docid": "22185326", "title": "", "text": "disclose the size of Thomas’ apartment, nothing indicates that the search went beyond the bedroom where he was found in pajamas along with his girl friend Joyce Hoffman, and the adjoining bathroom and closet. A loaded .38 caliber revolver was discovered in a night table by the bed and a quantity of marihuana was found in the bathroom adjoining the bedroom and underneath the mattress of the bed. Also found in the night table, a dresser drawer and a pocket of Thomas’ coat, which was lying on a chair in the bedroom, were two address books containing Jessup’s telephone numbers and the busmess card of an “Austin Burke” of Miami, Florida. Finally a letter from Egan to “Farris or Joyce” was discovered in a woman’s pocketbook in the bedroom closet. The address books, card and letter were received in evidence at the trial. We are unable to perceive how the extent of the search exceeded what was sanctioned in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). The search in Harris, also conducted without a search warrant, for the purpose of finding two stolen checks, burglar tools and pens, lasted for five hours, included each room of a four room apartment, and ultimately led to a bedroom bureau drawer where the agents found and opened a sealed envelope marked “personal papers”; the envelope contained forged draft cards which were seized as contraband and admitted into evidence on the same ground. Here the search was for the instrumentalities used in a ramified narcotics conspiracy and for evidence thereof. The agents were entitled to search for narcotics, easily concealed in pockets, pocketbooks, and furniture drawers, for weapons, and also under Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L. Ed.2d 782 (1967), for evidence showing the identity of other conspirators and Thomas’ connection with them. In overruling the holding of Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 65 L.Ed. 647 (1921), that a" }, { "docid": "4334516", "title": "", "text": "the requirement for registering and filing a return on Form 11-C originates in a regulation, it is given statutory sanction not only by section 4412(c) but also by section 6011(a) of the Internal Revenue Code of 1954. That section reads in part: “When required by regulations prescribed by the Secretary or his delegate any person made liable for any tax imposed by this title * * * shall make a return * * * according to the forms and regulations prescribed by the Secretary or his delegate.” It is thus apparent that count two charges a statutory offense. The Validity of the Search Warrants. Prior to defendants’ arrest, an Internal Revenue agent executed an affidavit which resulted in a search of premises located- at 5129 West Diversey Avenue and 3157 North Leclaire Avenue, Chicago. The agent stated in his affidavit, “There is now being concealed certain property, namely * * * betting slips, betting pads, records of bets, tickets, scratch sheets, telephones, * * * calculating machines, and diverse other * * * apparatus, * * * and records, relating to the business of accepting wagers.” The agent further stated that he made and supervised an investigation of these premises and had maintained a surveillance for some period prior to the search; that agents under his supervision observed the three defendants enter and leave an apart ment at the Leclaire Avenue address daily, at regular hours, and that they saw defendants on several occasions at the Diversey Avenue address, a building which had lettering on its front window, Goodman Design & Engineering Co. The affidavit listed numerous telephone calls originating from two numbers assigned to the Leclaire Avenue address to Miami, Florida, New Orleans, Louisiana, and other out-of-state places. The agent stated he had been informed that the Miami and New Orleans numbers were registered to or used by known gamblers. We have no difficulty in concluding that the affidavit stated grounds sufficient for the issuance of valid search warrants. United States v. Clancy, 276 F.2d 617 (7th Cir.1960), rev’d on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5" }, { "docid": "13791909", "title": "", "text": "claimed under a contract with the government. The movants contend that Special Agents of the Intelligence Division, Internal Revenue Service, were not authorized to execute search warrants at the time of the instant search and seizure. General principles of law controlling search and seizure are stated in Rule 41, Federal Rules of Criminal Procedure. A Special Agent is “a civil officer of the United States authorized to enforce or assist in enforcing any law thereof” within the provisions of Rule 41(c). United States v. Clancy, 276 F.2d 617, 629 (7th Cir. 1960), reversed on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959); and see United States v. Gannon, 201 F.Supp. 68, 73 (D.Mass.1961). Failure to re-enact special authorization under the Internal Revenue Code in respect to authority generally provided for under the Federal Rules of Criminal Procedure is not to be interpreted as an implied repeal of such authority. United States v. Joseph, supra. Subsequent re-enactment of express authorization to execute and serve search warrants by amendment of the Internal Revenue Code of 1954, Section 7608(b), Title 26 U.S.C.A., effective after date of the search and seizure in issue, is not to be construed as establishing lack of prior authority Under the criminal rules as recognized by the courts. See United States v. Joseph, supra, and United States v. Andrew Pasha, 62 CR 626, N.D. Ill., January 30, 1963, record of proceedings on motion to suppress. Issuance of the warrant by the United States Commissioner was obtained by the Special Agent with the assistance of the United States Attorney. The evidence as to the circumstances of the search and seizure reveal no irregularities prejudicial to the movants. The testimony as to the restraint of Jennie Alioto and as to the necessity of excluding an attorney and Frank Peter Balis-trieri from the premises during the search is in conflict. Prior to the hearing on this proceeding, the government offered to return items of the seized property beyond those designated in the warrant. The Special Agent who secured the warrant" }, { "docid": "4334519", "title": "", "text": "7608(b) was solely a clarification statute and that Internal Revenue agents had implied authority under section 7803(a) to make arrests and to execute search warrants. United States v. Murphy, 290 F.2d 573 (3d Cir.1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff’d, 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960). Admissibility of Telephone Conversations. Defendants assert that the district judge erred in admitting testimony of two agents concerning telephone conversations with unidentified persons who telephoned the apartment at the Leclaire Avenue address during the search of the premises. The evidence shows that the agents were assigned to answer calls made to the three telephones located on the premises. On some occasions in response to the caller’s request to place a bet the agents answered, “Yes,” and hung up. In several instances, however, one of the agents, in response to the caller’s question, “Who is this?”, gave the name of one or the other of the defendants as the person speaking, and the caller then placed a bet or asked for racing information. One caller said, “I hear there’s a general raid all over the country.” These telephone conversations were admitted into evidence over defendants’ objections. Defendants contend that the conversations were hearsay; however, the statements of the unidentified callers were offered only as circumstantial evi denee of the type of operation that was being conducted on the premises. Such evidence is competent. Reynolds v. United States, 225 F.2d 123 (5th Cir.1955). Defendants also contend that the testimony relating to the conversations was inadmissible because the actions of the agents in answering the telephones violated section 605 of the Communications Act of 1934, 47 U.S.C. § 605, as well as the fourth and fifth amendments to the Constitution. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), is dispositive of the constitutional claims. That case held that telephone conversations intercepted by police officers were not protected by the fourth and fifth amendments. The question remains whether section 605 of the Communications Act was violated thereby rendering" }, { "docid": "14794505", "title": "", "text": "probable cause to believe that they exist”. If the affidavits which conformed to the requirements of the rule were sufficient to support such a determination of probable cause by the Commissioner, neither the trial court nor an appellate court is justified in quashing the warrant as void. In construing the document we must apply the rule of reason. Gregory v. United States, 5 Cir., 237 F.2d 727. If, therefore, the three properly executed affidavits, together with the first document to which they were attached all together sufficiently establish the grounds for issuing the warrant, then it is immaterial that there was no signature on the first document, because it became a part of the other three affidavits. We must thus determine whether together the affidavits were sufficient to establish the grounds for issuing the warrant. We are satisfied that they were. From the affidavit of agent Richard E. Lewis it appeared that appellant Clay had several times been seen carrying into the house in question paper bags of the sort that were commonly used by lottery operators in carrying lottery paraphernalia, that he had a reputation for engaging in the business of accepting wagers for profit, and that he was known to the neighbors as “Mr. Anderson”, an alias. Agent William A. Morris’ affidavit recites that from a search of the records of the District Director of Internal Revenue it appeared that up to June 6, 1955, neither Will Parks Clay nor any person named Anderson had obtained the special occupation stamp for the fiscal year ending June 30, 1955, required of lottery operators. It was also cited that telephone company records showed that within the six months preceding June 20, 1955, a number of long distance telephone calls had been made from the 140 Morton Avenue house to known or reputed lottery operators. Agent William A. Pair in his affidavit swears that he had been reliably informed that appellant Clay was carrying on gambling activities in the home of Mattie Bell Anderson, that he had trailed and traced Clay’s car to the 140 Morton Avenue address, that he had" }, { "docid": "11111659", "title": "", "text": "quell resistance to a valid arrest. Judge Dimock’s ruling that the search of Mont’s apartment was lawful rested on the agents’ testimony that Mont was arrested “just inside the threshold,” Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); United States v. Rabinowitz, 339 U.S. 56, 62-65, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Carlo v. United States, 286 F.2d 841 (2 Cir.), cert. denied, 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855 (1961). Appellant contends this testimony was incredible in the light of evidence that the only lock that was in working order was one which required use of a key. The Government responds that even on that view, a search that would have been lawful, because reasonable, if a defendant were arrested one step inside the threshold, does not become unlawful because he was arrested a step outside it, see Clifton v. United States, 224 F.2d 329 (4 Cir.), cert. denied, 350 U.S. 894, 76 S.Ct. 152, 100 L.Ed. 786 (1955); Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed. 2d 876 (1957). We are not required to decide these questions since the narcotics seized in the apartment were offered only in support of the second count on which the jury acquitted, see Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, cert. denied sub nom. O’Kelley v. United States, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429 (1945); Blassingame v. United States, 254 F.2d 309 (9 Cir. 1958). The only objection to the admission of evidence that we need to consider relates to testimony of Carrozo, on redirect examination, that he had “received information to the effect that the defendant had picked up or had delivered to him two ounces of heroin and at that moment he [the defendant] was in his apartment putting it in small glassine envelopes in order to distribute to the addict trade.” The judge instructed the jury that such hearsay evidence “can be considered by you only on the question whether the narcotics agents reasonably believed that the defendant was committing" }, { "docid": "13791908", "title": "", "text": "constitute evidence of the crime of tax evasion by filing false and fraudulent returns. Absent a reasonable belief that the books- and records themselves were falsely kept for the purpose of preparing false returns — and there are no allegations, hearsay or otherwise, to support such a belief — neither the incomplete books and records, 'or any other books and records-of the taxpayers, would constitute instru mentalities of the crime of tax evasion, rendering these documents subject to search and seizure. Compare, for example, the showing as to falsely-kept records in United States v. Harmony Music Company, Criminal Action No. 8514 Commissioner, Civil Action No. 5115, D. Minn., September 28, 1955, where there was an affidavit by an accountant that she was ordered and directed and did so keep false and incomplete books and records for the sole purpose of avoiding payment of income taxes; and United States v. Labovitz, 20 F.R.D. 307 (D.Mass.1957), where there was affidavit showing that company records were kept for the purpose of manufacturing and supporting fictitious costs to be claimed under a contract with the government. The movants contend that Special Agents of the Intelligence Division, Internal Revenue Service, were not authorized to execute search warrants at the time of the instant search and seizure. General principles of law controlling search and seizure are stated in Rule 41, Federal Rules of Criminal Procedure. A Special Agent is “a civil officer of the United States authorized to enforce or assist in enforcing any law thereof” within the provisions of Rule 41(c). United States v. Clancy, 276 F.2d 617, 629 (7th Cir. 1960), reversed on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959); and see United States v. Gannon, 201 F.Supp. 68, 73 (D.Mass.1961). Failure to re-enact special authorization under the Internal Revenue Code in respect to authority generally provided for under the Federal Rules of Criminal Procedure is not to be interpreted as an implied repeal of such authority. United States v. Joseph, supra. Subsequent re-enactment of express authorization to execute and serve" }, { "docid": "12745479", "title": "", "text": "62 Cr. 655, held that just such an inconsistency between an arrest warrant and the complaint on which it was issued presented grounds for the. suppression of evidence obtained as a result of the subsequent arrest. We do not find this apparent inconsistency fatal. The facts set forth in the affidavit indicated reasonable grounds for the belief that appellants had not paid their occupational tax. Payment of the occupational tax accompanies filing of a return on Form 11-C, which is the means prescribed by the Regulations for registering in order to comply with § 4412 and to avoid violation of § 7272. Regs. § 44.4901-1 (a), (c). The same information which indicated failure to pay the occupational tax in this case also indicated failure to register, and therefore violation of § 7272. Appellants also challenge the sufficiency of the affidavit upon which the search warrant was issued. The affidavit, given by a special agent of the IRS, set forth the following as indicative of probable cause: «* * * Testimony of a Special Agent of the Internal Revenue Service who: (1) placed horse bets by telephoning number TR 9-2265; (2) that investigation has disclosed that the telephone number is installed at Ground Floor Apartment B at 1582 First Avenue, New York, New York; (3) that a search of the records of the Internal Revenue Service reveal that none of the persons residing at the afore-mentioned address have paid the Special Tax imposed by Title 26, United States Code, Section 4411; and (4) that wagers were placed by the Special Agent on January 20, 21, 1964.” The date of the affidavit was January 22, 1964. Appellants point out that the information relied on is not that of the affiant. However, hearsay may serve as the basis for the issuance of a warrant, if there is reason to believe that the hearsay is reliable. Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Here, the declarant was a special agent, and he" }, { "docid": "12745480", "title": "", "text": "the Internal Revenue Service who: (1) placed horse bets by telephoning number TR 9-2265; (2) that investigation has disclosed that the telephone number is installed at Ground Floor Apartment B at 1582 First Avenue, New York, New York; (3) that a search of the records of the Internal Revenue Service reveal that none of the persons residing at the afore-mentioned address have paid the Special Tax imposed by Title 26, United States Code, Section 4411; and (4) that wagers were placed by the Special Agent on January 20, 21, 1964.” The date of the affidavit was January 22, 1964. Appellants point out that the information relied on is not that of the affiant. However, hearsay may serve as the basis for the issuance of a warrant, if there is reason to believe that the hearsay is reliable. Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Here, the declarant was a special agent, and he spoke of things he himself had done in telephone calls to the phone located in the apartment. This seems sufficient indication of the reliability of the information. See United States v. Freeman, 358 F.2d 459 (2d Cir. 1966). Appellants contend that the affidavit does not indicate various crucial dates and, therefore, does not indicate that probable cause existed on a date close to the date of issuance of the warrant. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). However, it seems fairly clear from the language of the affidavit that the special agent on whose information the affiant relies placed the bets on January 20 and 21. The use of the article “the” to refer to the special agent described under (4) indicates that the agent intended is the same as the one mentioned at the beginning of the paragraph. Moreover, the use of the present tense in the phrase “a search of the records * * * reveal” [sic] indicates that the search was made at a time" }, { "docid": "14223772", "title": "", "text": "LEWIS, Circuit Judge. This is an independent proceeding filed by motion under Rule 41(e), Fed.R.Crim.P., wherein the apepllantmovant sought to suppress and have returned to him certain papers and materials taken from his person, automobile and home by agents of the United States. Appellant is not under arrest nor is an information or indictment outstanding against him. Since the motion is not made in nor dependent upon a case in esse, the District Court’s denial of such motion is an appealable order, Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374, and within the exception set forth in Di Bella v. United States, 369 U.S. 121, 131-132, 82 S.Ct. 654, 7 L.Ed.2d 614. Appellant does not hold a wagering stamp nor is he registered as provided for in section 4412, Internal Revenue Code, 1954. On August 28, 1964, agents of the Internal Revenue Service applied for and were granted Commissioner’s search warrants authorizing the search of appellant’s person, automobile and home for “bookmaking records and wa gering paraphernalia consisting ¿f memoranda of wagers made, bet slips, account sheets or books relating to wagers, bettors’ code identification list; recap sheet or sheets, schedules of sporting events on which point spreads (the line) are recorded, and money used in or derived from a bookmaking operation which are, have been, and will be used in violation of Sections 4401, 4411, 4412, 7201, 7203 of the Internal Revenue Code of 1954.” The validity of the warrants is not questioned and appellant’s sole contention is that the articles seized are private papers and not instrumentalities of crime. In other words, appellant asserts that the seizure resulting from the lawful search exceeded the authority of the warrants and was thus unreasonable and constitutionally prohibited. There is no doubt but that the objects sought for and described in the warrant can constitute instrumentalities of crime (gambling paraphernalia), United States v. Clancy, 7 Cir., 276 F.2d 617, 629-630, reversed on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574; see also Harris v. United States, 331 U.S. 145, 67" }, { "docid": "12198244", "title": "", "text": "agent’s actions in so observing defendant. Certainly defendant cannot complain that, solely because of a possible technical trespass to property not shown to be owned by him, the information which the agent acquired through observations before walking toward the garage was illegally obtained. United States v. Romano, 330 F.2d 566 (2nd Cir. 1964), cert. den. 380 U.S. 942, 85 S.Ct. 1020, 13 L.Ed.2d 961, reh. den. 381 U.S. 921, 85 S.Ct. 1530, 14 L.Ed.2d 441, aff. 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210. We, of course, need not decide whether our decision would be different had the evidence shown that the agent made these observations while a trespasser on defendant’s property. The affidavit also included information which the agent procured after walking toward defendant’s garage, including the positive identification of defendant and the observation that liquid was being poured into an opening in the garage floor. The affidavit in addition described the assault. While we are disposed to believe that the agent’s entry on to the property admittedly owned by defendant was justified under the circumstances, let us assume that the entry was illegal and that the information obtained at that time was improperly included in the affidavit for the search warrant. Nevertheless, the law is quite clear that the inclusion of illegally obtained evidence does not vitiate a search warrant which is otherwise validly issued upon probable cause reflected-in the affidavit and based on proper sources. Clay v. United States, 246 F.2d 298 (5th Cir. 1957), cert. den. 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69; Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1963). Here the evidence sufficient to support “probable cause” was not procured as a result of the allegedly illegal activity, and thus could not be said to be the fruit of a poisoned tree. Nor could the allegedly improper material in the affidavit have affected the scope of the warrant issued. We believe that the following language from United States v. Epstein, 240 F.Supp. 80 (D.C.S.D.N.Y.1965), is pertinent to the present case: We conclude that the search warrant was legally" }, { "docid": "17232098", "title": "", "text": "Judge could consider the evidence introduced in the criminal ease in deciding the libel case. The District Judge found in favor of the Government on the libel cause. The appeals in the two cases were heard together in this Court. Appellant’s main contention is that the District Judge erred in refusing to grant his motion to supress certain evidence on the ground that the affidavits upon which the search warrant was issued were not sufficient to justify the issuance of the warrant, and that the District Judge erred in denying his motion for judgment of acquittal. The affidavits, executed by two special agents of the Internal Revenue Service, stated that appellant was residing at premises of his mother-in-law, described as 2806 Westwood Avenue, Nashville, Tennessee, that he was a known gambler and bookmaker in the Nashville area, that his mother-in-law was the subscriber to one telephone in the premises, that two additional telephones in the premises were subscribed to in the name of Robert Walker, which name was an alias sometimes used by appellant, that a known bookmaking operator in New Orleans, Louisiana, had made numerous long distance telephone calls to one of the numbers listed in the name of Robert Walker, that from January 1, 1960, to April 15, 1960, approximately 293 long distance calls were charged to the two Robert Walker numbers, that- many of these calls were made to phones which were subscribed to and used by persons who were known gamblers and bookmakers in Birmingham, Alabama, and Biloxi, Mississippi, that numerous long distance calls were made to these two numbers from phones in other cities listed in the names of known gamblers and bookmakers in Clarkson, Georgia, Philadelphia, Pennsylvania, and Jacksonville, Florida, and that such long distance phone call activity was a characteristic of the bookmaking operation. The Commissioner was of the opinion that there was probable cause to believe that certain property, which was being used in violation of Sections 4411, 4412 and 7203 of the Internal Revenue Code of 1954 was being concealed in the described premises and issued the search warrant, in the" }, { "docid": "6049770", "title": "", "text": "he and another were engaged in the business of stealing from cars parked at the airport. Notified of this conduct, police officers had sufficient probable cause to arrest the petitioner and his associate. The suspected thieves were using a Pontiac automobile from the trunk of which incriminating evidence was seized by the arresting officers. The search conducted was not immediately contemporaneous with the arrest. After petitioner and his code-fendant had been taken to the police station by the arresting officers, a key was discovered in the rear seat of the police car. When the petitioner and his codefendant denied having any knowledge of the key, one of the arresting officers, without first obtaining a search warrant, returned to the airport parking lot. The Pontiac automobile had in the meantime been kept in the custody of a police officer. After ascertaining that the number on the key that had been recovered from the police car matched the Pontiac trunk lock, the officers opened the trunk and seized the evidence complained of. Preliminarily, and obedient to Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), we note that the petitioner, having been charged with possession of burglar tools, is a “person aggrieved” by the search of the automobile and had standing to object to the search. See also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The District Judge concluded that the search was lawful as being reasonably contemporaneous with the arrest. He relied on United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), as did this Court in United States v. Smith, 6 Cir., 393 F.2d 687, 689 (1968), in Crawford v. Bannan, 6 Cir., 336 F.2d 505, 507 (1964), cert. denied, 381 U.S. 955, 85 S.Ct. 1807, 14 L.Ed.2d 727, and in Arwine v. Bannan, 6 Cir., 346 F.2d 458, 466 (1965), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed.2d 123. The facts of Crawford v. Bannan, supra, fit most closely those before us. There, upon probable cause, the defendant was arrested and" }, { "docid": "21313838", "title": "", "text": "at, 584 Beach Street, Revere, specific material commonly used for registering bets. On the same day Pastore, Daley, other Special Agents, and deputy marshals jointly entered the premises, and seized the articles listed. 7. Pastore directed Special Agents to seize and search the cars parked in the driveway of, and the streets around, 584 Beach Street. The ears and the property in the cars were seized by the Special Agents. The defendants, after they had been arrested by deputy marshals who were acting on specific warrants of arrest, turned their auto keys over to the Special Agents. 8. March 7,1961 Special Agent Daley made to the U. S. Commissioner a statement that he had executed the search warrant. His return recited the presence of two other Special Agents, who themselves also signed the return. Thereafter the property covered in the return and the cars and their contents remained in the possession of the Intelligence Division of the Bureau of Internal Revenue. Upon the facts found, the first question is whether, so far as concerns the gambling material within 350-352 Ocean Avenue, there was, under the provisions of 18 U.S.C. § 3105 and Rule 41(d) of the Rules of Criminal Procedure, a valid execution of the search warrant issued October 17, 1960. This question is easily answered on unassailable authority. The basic search and seizure statute, 18 U.S.C. § 3105, provides that “a search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant.” See also Rule 41(c) of the Rules of Criminal Procedure. Thus two categories of persons have standing to execute:- (1) those mentioned in the warrant, and, additionally, (2) those officers authorized by law. Deputy Marshal Oczkowski plainly falls in the first category, at the least. Though he was not mentioned by name, the warrant was directed to “deputies” of the U. S. Marshal, of which he was one. That generic description suffices. Gandreau v. United States, 1st Cir., 300 F. 21, 25; United States v. Clancy, 7th Cir., 276 F.2d" }, { "docid": "11111658", "title": "", "text": "the only question as to the seizure of the 25 glassine envelopes relates to their extraction from Mont’s person. The Government stresses that the envelopes were not withdrawn from Mont’s mouth by Bailey but were exploded by Carrozo’s blow to the solar plexus, and points to Espinoza v. United States, 278 F.2d 802 (5 Cir.), cert. denied, 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960), as sanctioning even more vigorous methods of removal. The distinction between extraction and explosion seems dubious, even if we could believe that Mont possessed such singular oral retaining powers, and appellant contends that Espinoza should not be followed in the light of possibly contrary intimations arising from Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). However, we are not here required to decide the issue that appellant tenders. Mont started the fight, altogether unlawfully on the agents’ testimony which Judge Dimock was warranted in accepting, and the agents’ response must be viewed in that atmosphere and in the context of the necessity to quell resistance to a valid arrest. Judge Dimock’s ruling that the search of Mont’s apartment was lawful rested on the agents’ testimony that Mont was arrested “just inside the threshold,” Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); United States v. Rabinowitz, 339 U.S. 56, 62-65, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Carlo v. United States, 286 F.2d 841 (2 Cir.), cert. denied, 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855 (1961). Appellant contends this testimony was incredible in the light of evidence that the only lock that was in working order was one which required use of a key. The Government responds that even on that view, a search that would have been lawful, because reasonable, if a defendant were arrested one step inside the threshold, does not become unlawful because he was arrested a step outside it, see Clifton v. United States, 224 F.2d 329 (4 Cir.), cert. denied, 350 U.S. 894, 76 S.Ct. 152, 100 L.Ed. 786 (1955); Kremen v. United States, 353 U.S." }, { "docid": "21313840", "title": "", "text": "617, 624, 629, reversed on another point, Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574. The second question is whether those Special Agents who seized the cars at 350-352 Ocean Avenue were authorized so to do without a warrant for the seizure of such vehicles. Five distinctions deserve notice. First, the auto seizures were made by Special Agents, not by deputy marshals. The Special Agents themselves did not have, nor purport to execute, warrants for the arrest of any person. Nor were the Special Agents under the direction or charge of the deputy marshals who did make the arrests. Thus there is no occasiqn here to consider whether those who, pursuant to warrants, arrested the defendants, might have had the further right to make a seizure of the autos as incidental to the arrest of the individuals. cf. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. See Sir Patrick Devlin, The Criminal Prosecution in England, pp. 63-64. Second, there is no evidence that at the time they were seized the autos were in use as devices for carrying on gambling. At an earlier date, when the seats in the autos were being used as places for storing envelopes and slips, the cars were BOOKIE-MOBILES. But on the day of seizure, so far as appears, the cars were no more instruments of crime than the suits worn by the defendants which on earlier days may have had slips tucked in their pockets. The cars were, for aught the record shows, as innocently used for transportation of individuals as are the buses in which less affluent persons ride to work. Third, as stated in the findings, the autos which were seized had been used previously as instruments of crime, that is as BOOKIE-MOBILES. But after that usage, there had been ample time to procure warrants to seize and search those cars, or to file libels for their forfeiture and to secure process based thereon. It follows that there is no occasion for dispensing with the usual standards for compliance with the Fourth" }, { "docid": "23446898", "title": "", "text": "which they examined in order to confirm a mere suspicion that it had been stolen. The defendant had not been arrested, had in no way consented to any search of his private property and was absent when the examination took place. Their activity clearly constituted a “search” protected by the Fourth Amendment. That being true, law officers “must justify their conduct before courts which have always been, and must be, jealous of the individual’s right of privacy within the broad sweep of the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950). Under the totality of the circumstances surrounding the examination of the automobile by Agents Neely and Mearas, the search, made without justification or necessity, was unreasonable, requiring the suppression of any evidence obtained therefrom. Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955). 297 F.Supp. at 1269. Mrs. Greer’s consent, by giving the keys, was at least as broad as Mrs. Johnson’s insofar as giving some sort of right to be on the premises. Weaver v. United States, 374 F.2d 878 (5th Cir. 1967), is a slender reed. The accused, under a state arrest not held unlawful, voluntarily gave an FBI agent a copy of his automobile registration, showing the identification number. Subsequently local police opened the car door and the agent observed the doorpost number and saw it to be the same. Later the FBI agents furnished the number to Georgia officials, who arrested the accused when he appeared there, and it developed that the vehicle was stolen. This court held that the identification number, used to initiate the government’s case, was not illegally obtained because voluntarily supplied by the accused from an independent, lawful source. In an elliptical dictum, the court then said: Because of our ruling that the evidence sought to be suppressed was obtained from an independent, lawful source, it is unnecessary for us to decide whether the visual search by Lou- derman was illegal or not. However, the method which Agent Louderman used to obtain the public identification number of the vehicle was" }, { "docid": "21313839", "title": "", "text": "gambling material within 350-352 Ocean Avenue, there was, under the provisions of 18 U.S.C. § 3105 and Rule 41(d) of the Rules of Criminal Procedure, a valid execution of the search warrant issued October 17, 1960. This question is easily answered on unassailable authority. The basic search and seizure statute, 18 U.S.C. § 3105, provides that “a search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant.” See also Rule 41(c) of the Rules of Criminal Procedure. Thus two categories of persons have standing to execute:- (1) those mentioned in the warrant, and, additionally, (2) those officers authorized by law. Deputy Marshal Oczkowski plainly falls in the first category, at the least. Though he was not mentioned by name, the warrant was directed to “deputies” of the U. S. Marshal, of which he was one. That generic description suffices. Gandreau v. United States, 1st Cir., 300 F. 21, 25; United States v. Clancy, 7th Cir., 276 F.2d 617, 624, 629, reversed on another point, Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574. The second question is whether those Special Agents who seized the cars at 350-352 Ocean Avenue were authorized so to do without a warrant for the seizure of such vehicles. Five distinctions deserve notice. First, the auto seizures were made by Special Agents, not by deputy marshals. The Special Agents themselves did not have, nor purport to execute, warrants for the arrest of any person. Nor were the Special Agents under the direction or charge of the deputy marshals who did make the arrests. Thus there is no occasiqn here to consider whether those who, pursuant to warrants, arrested the defendants, might have had the further right to make a seizure of the autos as incidental to the arrest of the individuals. cf. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. See Sir Patrick Devlin, The Criminal Prosecution in England, pp. 63-64. Second, there is no evidence that at the" } ]

[ { "docid": "22657538", "title": "", "text": "appeal three issues upon which the district court entered summary judgment in favor of the State: (1) whether his confession was illegally obtained; (2) whether the imposition of the death penalty in North Carolina unconstitutionally discriminates against the impoverished; and (3) whether the ex post facto clause bars the application of N.C.Gen.Stat. § ISA-1419 to his habeas petition. We will address each of Rose’s arguments and then turn to the State’s argument that the district court erred by remanding the ineffective assistance claim to the state habeas court for application of the proper legal standard. II. To be entitled to a certificate of appealability, Rose must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2000). In Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the United States Supreme Court clarified § 2253’s requirements. To make the required showing, a petitioner must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 483-84, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). A. ROSE’S EX POST FACTO CLAIM Rose filed his MAR on October 4, 1995. On June 21, 1996, the North Carolina legislature amended N.C.Gen.Stat. § ISA-1419 (1999 & Supp.2000), which addresses default of claims on state collateral review. Prior to this amendment, the procedural bars established under § 15A-1419 were discretionary. The amendment makes the procedural bars found therein mandatory rather than discretionary, unless the petitioner can establish good cause or that the failure to consider the claim will result in a fundamental miscarriage of justice. N.C.Gen.Stat. § 15A-1419(b). The State habeas court applied the amended version of § 15A-1419 to several of Rose’s claims and held the claims procedurally barred. Rose argues that the application of § 15A-1419 as amended violates the Ex Post Facto Clause of the United States Constitution. U.S. Const, art." } ]

[ { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "7963401", "title": "", "text": "2253(c)(2). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....'\" Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (quoting 28 U.S.C. § 2253(c)(1)). “The COA statute ... requires a threshold inquiry into whether the circuit court may entertain an appeal.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); citing Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). IV. Graves claims first that he is actually innocent of the crime and that the imposition" }, { "docid": "22276150", "title": "", "text": "every time there is a Rule 60(b) denial in a habeas case and the petitioner elects to appeal. And prisoners will almost always elect to appeal given all the free time on their hands. See Harris v. Garner, 216 F.3d 970, 978-79 (11th Cir.2000) (en banc). The dissent would have the courts of appeal entertain and decide each of those appeals no matter how clearly non-meritorious it appeared from the outset, and no matter whether it was from the denial of the first or fifth or fifteenth Rule 60(b) motion the petitioner had filed. Congress could not have intended that. For all of these reasons, we conclude that the certificate of appealability requirement applies not only to all final judgments denying § 2254 or § 2255 relief, but also to all final judgments denying Rule 60Q3) relief from those earlier final judgments. III. The next question up is whether certificates of appealability should be issued in the three cases before us. Congress has provided that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that this means the petitioner must show “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336, 123 S.Ct. at 1039, because “[t]he question is the debatability of the underlying-constitutional claim, not the resolution of that debate,” id. at" }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "11683530", "title": "", "text": "This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State’s motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court. Standard of review Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA" }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "22327724", "title": "", "text": "3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude ei ther that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. We review the district court’s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001). Because Clark’s petition was filed on October 31, 2005, almost two years after his conviction became final, his petition is untimely absent statutory or equitable tolling. Clark claims statutory tolling. Section 2244(d)(1)(B) allows the limitation period to begin as of “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Clark claims this provision" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "3835519", "title": "", "text": "granted Respondent’s motion, dismissed Rowell’s petition, entered a final judgment, and denied Ro-well a COA on his claims. Rowell timely filed the instant application for COA. DISCUSSION Rowell filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, his petition is subject to the procedures imposed by AEDPA; Rowell’s right to appeal is governed by the COA requirements of § 2253(c). See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). When a habeas petitioner requests permission to seek appellate review of the dismissal of his petition, this Court limits its examination to a “threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this standard requires a petitioner to demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to- proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). At issue is the debatability of the underlying constitutional claim, but not the resolution of that debate. Id. at 342, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has" }, { "docid": "7585282", "title": "", "text": "of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El I, 537 U.S. at 336-37, 123 S.Ct. 1029. In sum, Petitioner need not show that his habeas petition will ultimately prevail on the merits in order for this court to issue a COA. Id. at 337, 123 S.Ct. 1029. In fact, the Supreme Court has specifically instructed that a court of appeals should not deny a COA simply because the petitioner has not demonstrated an entitlement to relief. Id. Instead, “ ‘where a district court has rejected the constitutional claims on the merits, the showing required to" }, { "docid": "22327723", "title": "", "text": "was incorrect. See 28 U.S.C. § 1915(a)(3); Fed. R.App. P. 24(a)(3). In this Court, Clark requests a Certificate of Appealability (COA) and again seeks leave to proceed ifp. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1), 24(a)(5). Background Clark’s habeas petition stems from four state cases. In one case, a jury convicted Clark of two counts. He then pled guilty to three other pending cases pursuant to a plea agreement. On December 20, 2002, he was sentenced to twenty years imprisonment for the charges on which the jury found him guilty. At the same time, pursuant to the plea agreement, the court sentenced him on the remaining charges, running all sentences concurrently. Clark did not move to withdraw his guilty pleas, file a direct appeal, or seek a writ of certiorari from the United States Supreme Court. As a result, the judgments on Clark’s convictions became final ten days later, December 30, 2002. Okla. Stat. tit. 22, § 1501; Okla.Crim.App. R. 2.5(A) & 4.2(A). Clark filed his habeas petition in federal court on November 3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and" }, { "docid": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "23197595", "title": "", "text": "and the State’s summary-judgment motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005). Each side appealed. To do so, Foster requested a COA from our court on two claims. Foster, 2006 WL 616980, addresses the denial of that request. II. Review of this 28 U.S.C. § 2254 habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Before addressing the conditional habeas relief granted by the district court, we consider the belated COA request for a stand-alone actual-innocence claim. A. Under AEDPA, Foster may not appeal the denial of habeas relief unless he obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA before one can be requested here. As noted, the district court denied a COA for the claim Foster seeks to appeal here. Obtaining a COA requires “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. For that requisite showing, an applicant usually must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the [federal-habeas] petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’ ”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Where, as here, the district court’s habeas denial includes a procedural ruling, as opposed to one on the underlying constitutional claim, the showing is expanded. See Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000). In that situation, the applicant must show" } ]